Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, May 9, 2014

Wikipedia as Legal Authority

If you are wondering whether or not it is a good idea to cite Wikipedia in an appellate brief, this Above the Law post on the subject might be as good a starting place as any.

Craig Estlinbaum

May 9, 2014 in Legal Research, Procedure, Web/Tech | Permalink | Comments (0)

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)

Wednesday, September 29, 2010

Sovereign immunity

Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159

The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.

Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.

In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.

The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.

In the words of the Court of Appeals:

"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."

The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to ac­tions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."

Accordingly, the State's waiver of sovereign immunity was not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 29, 2010 in Procedure, Public Sector Employment Law, Public Sector Labor Law | Permalink | Comments (0)

Monday, February 15, 2010

Do Magistrate Judges Have The Authority To Sanction Attorneys??

Diverse Views Offered on Magistrate Judges' Authority to Sanction

is and interesting New York Law Journal article. It reports on one case. As the article states:

Although Second Circuit Judges Dennis Jacobs, Pierre N. Leval and Jose A. Cabranes agreed to reverse sanctions leveled against three Cravath, Swaine & Moore lawyers in an alien tort statute case on Friday, they could not agree on whether or not magistrate judges can sanction attorneys without the consent of the parties. Judge Cabranes was persuaded by other courts that a motion for sanctions was the functional equivalent of an independent claim, while Judge Leval said that "the list of matters excluded from magistrate judges' broadly stated power to hear and determine does not mention the imposition of sanctions." In a third concurring opinion, Judge Jacobs said the circuit should not address the issue.

Mitchell H. Rubinstein

February 15, 2010 in Federal Law, Law Review Ideas, Procedure | Permalink | Comments (0)

Monday, October 12, 2009

Employee cannot be found guilty of misconduct not alleged in the disciplinary charges filed against the employee

Mayo v Personnel Review Bd. of the Health & Hosps. Corp, 2009 NY Slip Op 06224, Decided on August 18, 2009, Appellate Division, First Department

Keith Mayo was employed by the Health and Hospitals Corporation [HHC] as a supervisor of stock workers. As a result of an altercation between Meyo and one of his subordinates, HHC preferred two charges against petitioner.

The first charge stated that Mayo had “assaulted" the subordinate; the second charge stated that Mayo’s conduct "was unbecoming and unprofessional of a corporate employee and supervisor when you assaulted" the subordinate.

The administrative law judge determined that, although the altercation occurred, HHC failed to establish that Mayo initiated or willingly participated in it, and she recommended that the charges be dismissed. HHC, however, rejected the conclusion of the ALJ that Mayo did not initiate the fight, determined that he did initiate it and assaulted the subordinate, and terminated his employment.

Mayo appealed HHC’s Personnel Review Board [PRB]. The PRB sustained HHC’s decision to terminate Mayo but it did not base its determination on a finding that Mayo initiated the altercation or assaulted the subordinate. Instead PRB concluded that Mayo had a duty to report immediately the incident to the HHC police (or his superiors). Finding that he failed to report immediately the incident, the PRB upheld HHC's decision to terminate Mayo's employment.

Mayo filed an Article 78 proceeding seeking to annul the PRB's determination and to be reinstated to his position with HHC, asserting that the PRB violated his due process rights by upholding HHC's decision to terminate his employment on a ground of misconduct that was never charged — failing to report immediately the altercation.

Supreme Court found that PRB's determination was founded on uncharged misconduct and therefore violated Mayo's due process rights and annulled PRB's determination. The court remanded the matter to the PRB to dismiss the charges against Mayo and reinstate him to his position.

In response to HHC’s appeal, the Appellate Division said “We agree with Supreme Court that [Mayo’s] due process rights were violated because the PRB affirmed HHC's decision to terminate [his] employment based on uncharged misconduct.”

The Appellate Division cited Matter of Murray v Murphy, 24 NY2d 150 as controlling in this case, noting that the Court of Appeals had ruled that:

The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged . . . A public employee has a claim to due process and he may assume that the hearing will be limited to the charges as made. His lawyer is likewise entitled to prepare for the hearing in reliance that, after the hearing is concluded, the charges will not be switched. Any other course is a violation of the employee's right to be treated with elemental fairness.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 12, 2009 in Procedure, Public Sector Employment Law | Permalink | Comments (0)

Tuesday, July 28, 2009

The Dilemma of Apologizing

Gonzalez v. State, ___N.E.2d___, 2009 WL 1765684 (Indiana Ct. App. June 23, 2009), illustrates the dilemma  criminal defendants and others have by offering an apologizing. Here, the defendant was convicted of criminal mischief and operating a vehicle while intoxicated after he had an accident with an empty school bus. The trial court admitted into evidence a letter the defendant wrote to the school apologing and explaining that the defendant had been drinking.
Sigificantly, however, that letter was written after the court gave the school time to decide if it was going to object to a plea that was being negotiated. The appellate court held that it was a reverseable error to admit that letter because it was effectively part of the plea negotiaton process. By giving the school time to decide if it will object, the court reasoned that a third party was effectively part of the negotiation process.
This case is an important illustration about the danager a party has if he or she offers an apology. On the other hand, apologies can reduce unnecessary litigation.
There is a significant amount of law review commentary addressing this dilemma and I am in the process of adding to that commentary. This case will be part of my article.

Mitchell H. Rubinstein 

July 28, 2009 in Criminal Law, Litigation, Procedure | Permalink | Comments (0) | TrackBack (0)

Saturday, March 28, 2009

Lets Go To The Video Tape

Supreme Court Enters the You Tube Era is another excellent March 3, 2009 NY Times article by Adam Liptak. It is about the use of video by courts and how that may change things. How? Because courts and jurors would be viewing the video. The article highlights the Supreme Court decision last year,   Scott v. Harris, which included a video link. That video was referred to in the decision by both the majority and the dissent. Additionally, a cert petition that was recently filed included a video link.
If you ask me, its about time.
Mitchell H. Rubinstein

March 28, 2009 in Procedure | Permalink | Comments (0) | TrackBack (0)

Saturday, January 17, 2009

Federal Court Podcasts

The federal court system has made a series of podcasts of the select rule making committee proceedings. Those podcasts are available here. The U.S. Court System's web site provides in part:

Welcome to Federal Rulemaking Podcasts! We have posted                           audio recordings of select rules committee proceedings.                           You can choose to get the latest Federal Rulemaking                           podcasts delivered directly to your audio device. To                           receive a podcast, right-click on the podcast's link                           and copy the shortcut, then paste it into your podcast                           program. Some podcast programs may work automatically                           by simply clicking on the link.

What a great idea!
Mitchell H. Rubinstein

January 17, 2009 in Procedure | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2009

Lawsuit Abuse

This web site, facesoflawsuitabuse is an anti-lawyer site about lawsuit abuse.  For example, its fact sheet provides:

75% of voters say lawyers benefit the most from lawsuits; only 4% say victims do.

85% of voters say the number of frivolous lawsuits is a serious problem.

Three-quarters of all small business owners in America are concerned they might be the target of a frivolous or unfair lawsuit. Of those who are most concerned, six in ten say the fear of lawsuits makes them feel more constrained in making business decisions generally, and 54 percent say lawsuits or the threat of lawsuits forced them to make decisions they otherwise would not have made.

Small businesses pay $20 billion in tort liability costs out of their own pockets each year.

As you could imagine, I do not agree with the premise of this website. Sure, there are lawsuit abuses, but I believe most lawyers are honorable. In any event, I bring your attention to this web site for those teachers who may want to use this web site to spark discussion about sanctions and the role of lawyers in society.

Mitchell H. Rubinstein

January 2, 2009 in Procedure | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 20, 2008

Lawyer Sanctioned $29,000 For His Client's Profanity At Deposition

The March 5, 2008 Legal Intelligencer reported on a case where a lawyer was held to be jointly and severally responsible for $29,000 in FRCP 11 sanctions because his client repeatedly used profanity at a deposition and did nothing to stop it. That article is available here. The case is GMAC Bank v. HTFC Corp., ___F. Supp. ___ (E.D. Pa. Feb. 29, 2008) and is available here.

This case is not over. The May 7, 2008 Legal Intelligencer is now reporting that the attorney in question is seeking to be relieved as counsel and he claims that he should also be relieved from being responsible for paying a portion of the sanctions because he was not the individual who chuckled during the deposition.

This case is important because it stands for the proposition that attorneys cannot remain silent if their clients utilize excessive profanity during a deposition.

Mitchell H. Rubinstein

May 20, 2008 in Procedure | Permalink | Comments (0) | TrackBack (0)