Category Archives: Judiciary

Service Pets, the ADA and the Supreme Court

On Monday, October 31, the Supreme Court will hear oral argument in Fry v. Napoleon Community Schools, an appeal by a 12-year-old Michigan girl with cerebral palsy who was not allowed to bring her service dog to school. The Court will consider whether Ehlena Fry’s family can sue the school district for violations of federal disability laws. Fry’s family obtained a goldendoodle, Wonder, to help her open doors and retrieve items. Her school district initially refused to allow Wonder at school. Officials relented a bit in 2010, but they placed many restrictions on Wonder. Ehlena and her dog later transferred to another school.

The family sued the school district in the US District Court for the Eastern District of Michigan for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. In January 2014, the court in EF ex rel. Fry v. Napoleon Community Schools, 2014 WL 106624 (subscription required) granted the defendant’s motion to dismiss the complaint ruling that the plaintiffs first had to seek an administrative hearing. In June 2015, the 6th Circuit Court of Appeals in Fry v. Napoleon Community Schools, 788 F. 3d 622 upheld that decision 2-1. The American Civil Liberties Union is representing the family. School districts around the country have repeatedly denied children with disabilities their right to bring service dogs to school often claiming the service animals are not necessary and that the schools can help the children through other means. The ACLU wants the justices to declare that children prevented from using service animals at school can proceed directly to court without having to go through administrative hearings that can be costly, time consuming and burdensome. The ACLU Petition for Certiorari is available here.  See also Ehlena and Wonder the Service Dog’s Incredible Journey to the Supreme Court and the video that the ACLU posted about her.

The school argues that exhausting administrative remedies encourages parents and schools to work together to determine the best plan for each child and are a cheaper way to resolve educational disputes. The Obama administration has backed the Fry family, saying the appeals court’s decision was wrong and “leads to unsound results.” The government said when the lawsuit was filed, Ehlena had already moved to a new school district and there was no ongoing dispute to compromise. Requiring her to go through administrative proceedings “would waste time and resources without offering any chance of resolving their actual dispute,” the Justice Department said in a brief to the court.

On the subject of service pets, SARA, the Brooklyn Law School Library catalog links to an online resource by the Office of the New York State Attorney General Civil Rights Bureau titled Freedom on Four Legs: Service Animals, Individuals with Disabilities, and the Law.

Judicial Review and Alexander Hamilton

Independence Day 2016 marks the 240th anniversary of the Second Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. This milestone in US history is observed by Americans, young and old, as a national holiday on the same calendar date each year. If July 4 is a Saturday, it is observed on Friday, July 3. If July 4 is a Sunday, it is observed on Monday, July 5. This year government offices and schools are closed on Monday, July 4. See 5 U.S. Code § 6103. The library at Brooklyn Law School has reduced hours on Monday and will be open from 9am to 5pm so law students can study for the bar exam scheduled at the end of July.

RutgersIn Constitutional Law courses law students at BLS and throughout the country learn that the decision by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803) is arguably the most important case in American law. It was the first U.S. Supreme Court case to apply the principle of “judicial review”, the power of federal courts to void acts of Congress in conflict with the Constitution. However, a newly acquired title in the BLS Library collection, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review by historian Peter Charles Hoffer (Call No. KF228.R877 H64 2016) makes clear that Marbury was not the first court in the new American Republic that considered the argument that a legislative enactment in conflict with a state or federal constitutional provision is void. One of the first decisions to address the question was Rutgers v. Waddington, decided in the Mayor’s Court in the City of New York on August 7, 1786. The case is important to American constitutional law because defendants’ primary attorney who argued for an expansive notion of judicial power was Alexander Hamilton, who advocated for the principal of judicial review in Federalist Paper No. 78.

The case was presented on June 29, 1784 with Chief Justice James Duane presiding. The facts showed that Plaintiff Elizabeth Rutgers owned a large brewery and alehouse on the northern side of Maiden Lane near where Gold Street now enters it. The brewery extended from Smith (now William) Street on the west, to Queen (now Pearl) Street, on the east; and from Maiden Lane, on the south, to John Street on the north. It was one of the most notable features in what is now the Financial District.  Plaintiff was forced to abandon the brewery during the British occupation of New York City. Under the Trespass Act of 1783, which permitted patriots to sue loyalists for damages to property in occupied areas of the state, Rutgers demanded rent from Joshua Waddington who had been running the brewery since it was abandoned. Alexander Hamilton, attorney for the defense, argued that the Trespass Act violated the 1783 peace treaty ratified earlier by Congress. Chief Justice Duane delivered a split verdict awarding Rutgers rent only from the time before the British occupation. The case was ultimately settled by the two parties. Importantly the case set a precedent for Congress’s legal authority over the states. In his ruling, Chief Justice James Duane wrote that “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.”

Miranda v. Arizona: Fifty Years Later

ernestomiranda640On June 13, 1966 the United States Supreme Court handed down the decision in Ernesto Miranda v. the State of Arizona, 384 U.S. 436 (1966). This case was actually consolidated with three others: Westover v. United States, Vignera v. State of New York and California v. Stewart, however, this case has become known to be simply Miranda v. Arizona.

Ernesto Miranda was arrested in Phoenix, Arizona in March 1963 based on circumstantial evidence linking him to the kidnapping and rape of an eighteen year old woman named Mary Adams ten days prior to his actual arrest.  At the police station, after hours of interrogation, he signed a confession. During the interrogation Miranda was not told of his right to counsel.  During the trial the prosecutor entered his confession as evidence; Miranda’s attorney objected, stating that the confession was not truly voluntary and should be excluded. This objection was overruled and Miranda was convicted of rape and kidnapping at trial. The Arizona Supreme Court affirmed the trial court’s decision.

Miranda’s case and three other similar cases were appealed to the United States Supreme Court, with the Court handing down their decision fifty years ago this month.  The Miranda case has become famous because it establishes a defendant’s right to counsel and of the right against self-incrimination.  Judge Earl Warren wrote for the majority, in the 5-4 decision, that these rights were guaranteed by the Fifth and Sixth Amendments to the Constitution.

After the Supreme Court’s decision, the state of Arizona retried Miranda without the confession, but he was convicted on the strength of a witness and sentenced to 20 to 30 years in prison. He served eleven years and died in 1976, after being stabbed in a bar fight.

“Miranda Rights” have come to be known by the public through television shows and movies as the “right to remain silent” and “anything said can and will be used against in a court of law.” Hundreds of law review articles have been written about this case and a defendant’s “Miranda Rights.”  The library also has a number of books about the Miranda case, including the titles listed below:

Miranda: the Story of America’s Right to Remain Silent by Gary Stuart (2004).

The Miranda Debate:  Law, Justice, and Policing by Richard Leo (1998).

The Miranda Ruling: Its, Past, Present, and Future by Lawrence Wrightsman (2010).

Miranda Revisited by Frank Schmalleger (2001).

Oyez Project Gets New Home

supremecourtThe Oyez Project, a free repository of more than 10,000 hours of U.S. Supreme Court oral-argument audio and other court resources, will be getting a new home.

Developed by Prof. Jerry Goldman, Oyez has had its home at the IIT Chicago-Kent College of Law  for over 20 years.  It is a complete and authoritative source for all of the Supreme Court’s audio since the installation of a recording system in October 1955.  Oyez also provides detailed information on every justice throughout history and offers a panoramic tour of the Supreme Court building, including the chambers of several justices.

Prof. Goldman is retiring this month and a new arrangement for the Project has been formed with Cornell University’s Legal Information Institute and Justia.   All of the information of the Oyez Project will not be available at the Legal Information Institute website.

Copyright and “We Shall Overcome”

Earlier this month, a class-action complaint was filed in the US District Court for the Southern District of New York in the case of We Shall Overcome Foundation v. The Richmond Organization, Inc. (TRO Inc.) et al. addressing ownership of “We Shall Overcome,” the unofficial anthem to the civil rights movement and a song the Library of Congress called “the most powerful song of the 20th Century”.  According to the late folk singer Pete Seeger, the song became associated with the Civil Rights Movement in 1959, when Guy Carawan sang it  at Highlander, which was then focused on nonviolent civil rights activism. Seeger and other famous folksingers in the early 1960s, such as Joan Baez, sang the song at rallies.

The copyright dispute against the two music-publishing companies, Ludlow Music and the Richmond Organization, seeks a judgment from the court declaring that the defendants’ copyright claim is invalid and ordering the defendants to disgorge previously collected licensing fees. According to the complaint, defendant TRO filed copyrights for “We Shall Overcome” in 1960 and 1963 and has collected millions of dollars in fees over the decades. The law firm for the plaintiff is Wolf Haldenstein, which was involved in the recent successful challenge to Warner/Chappell Music’s claims that it owned the copyright to “Happy Birthday to You.”

The filing argues that TRO-Ludlow’s copyright claims were invalid for several reasons: because it had not been renewed (as required by United States copyright law at the time), the copyright of the 1948 People’s Songs publication containing “We Will Overcome” had expired in 1976. Additionally, it was argued that the registered copyrights only covered specific arrangements of the tune and “obscure alternate verses”, that the registered works “did not contain original works of authorship, except to the extent of the arrangements themselves”, and that the registered copyrights stated that the works were derivatives of a work entitled “I’ll Overcome” which did not exist in the database of the United States Copyright Office.

music businessThe Brooklyn Law School Library has in its collection several items related to copyright and music. See for example All You Need to Know about the Music Business by Donald S. Passman (Call # ML3790 .P35 2015) which is on Course Reserve at the Circulation Desk. For more than twenty years, this book has been universally regarded as the definitive guide to the music industry. Now in its ninth edition, this latest edition leads novices and experts alike through the crucial, up-to-the-minute information on the industry’s major changes in response to today’s rapid technological advances and uncertain economy.

Chief Justice Earl Warren Biography

Today marks 125 years since the birth of Earl Warren, the 14th Chief Justice of the US Supreme Court, in Los Angeles, California. Warren’s tenure on the Court was from 1953 when President Dwight D. Eisenhower nominated him until his retirement in 1969. Earl Warren had enormous impact on the political and legal landscape of twentieth century America. In his long public service, Warren pursued a Progressive vision of ethical and effective government that brought moral integrity to the nation’s public policies, especially in the fields of racial relations, criminal justice, and freedom of marital association. Warren’s path-breaking approach to legal writing and his management of the responsibilities of the Office of Chief Justice encouraged public understanding of and support for the work of the Supreme Court.

A graduate of the University of California at Berkeley, he was elected district attorney of Alameda County in 1925 and continued to be reelected through 1938, when he was elected Attorney General of California. In 1942, Warren ran successfully for Governor of California as a Republican and was reelected in 1946 and 1950. He ran for Vice President of the United States in 1948 on the Republican ticket with Thomas Dewey, who lost to Harry Truman, the Democratic incumbent.

The Warren Court issued a host of notable decisions including decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that states are bound by the decisions of the Supreme Court and cannot ignore them (Cooper v. Aaron); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp); the scope of the doctrine of incorporation in state criminal matters (Mapp v. Ohio, Miranda v. Arizona) was dramatically increased; reading an equal protection clause into the Fifth Amendment (Bolling v. Sharpe); holding that the states may not apportion a chamber of their legislatures in the manner in which the United States Senate is apportioned (Reynolds v. Sims); and holding that the Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses (Gideon v. Wainwright).

Warren wasWarren Chair of the Warren Commission on the Assassination of President Kennedy. Serious lapses in judgment and uncritical deference to authority regarding national security issues in the report have clouded his legacy. The Brooklyn Law School Library has in its collection Earl Warren and the Struggle for Justice by Paul Moke (Call # KF8745.W3 M65 2015), a highly readable biography that offers an updated and balanced appraisal of Warren’s leading social justice decisions and a liberal critique of his failings that provides new insights into Warren, the man, the jurist, and the leader.

The New York Court of Appeals: Women at the Top

DiFioreJanet DiFiore

On Thursday, January 21st, 2016, Janet DiFiore, former Westchester County District Attorney, was confirmed by the New York State Senate as the second female Chief Judge for the New York Court of Appeals, the highest court in New York State.  The chief judge of the Court of Appeals is also head of the New York State Court system.  Ms. DiFiore was nominated for this position by Judge Andrew Cuomo in December 2015.

Judge DiFiore was originally elected as Westchester County District Attorney in 2005 and then re-elected in 2009 and 2013.  She has been a strong advocate for those who are affected by both child and elder abuse, forming teams within her office to deal with these issues.

She has been a strong advocate of reviewing what could be possible wrongful convictions, and her office was able to overturn the conviction, based on a new DNA analysis of crime scene evidence, in the case of Jeffrey Deskovic, who had been wrongly convicted of the rape and murder of a high school classmate.

Ms. DiFiore led the effort to establish the Westchester Intelligence Center, where Westchester County’s many local police departments, county police, state police and other state, regional and federal law enforcement agencies share information.

Prior to becoming Westchester County District Attorney she was a Supreme Court Justice from 2003-2005 and a Westchester County Court Judge from 1998-2002.

 

Judith_S_Kaye_-225x300Judith Kaye

On January 7, 2016, Judge Judith Kaye, the first female Chief Judge for the New York Court of Appeals died after a courageous bout with cancer.

Judge Kaye was initially nominated to the position of associate judge by Governor Mario Cuomo in 1983 and she served in that position until 1993 when Chief Judge Sol Wachtler resigned and Cuomo appointed Judith Kaye as Chief Judge.  She served in that position until December 31, 2008, when she reached the mandatory retirement age of seventy.  She was not only the first female chief judge of the state of New York, but also the longest-serving chief judge.

During her many years on the court she worked hard to address problems on many fronts, but one of her primary concerns was improvement in the New York State jury system and she worked to change what she saw as problems in the system.  She was able to end automatic exemptions for certain groups so that more people would be available to serve and she also recommended the expansion of juror source lists to include unemployment and other lists that were not previously used.  She also had brochures and pamphlets developed for potential jurors so that they could understand the juror selection process and the work of a jury.  She also sought to improve courthouse facilities so that jurors would at least have a pleasant place to “serve their time.”

Judge Kaye led in the development of problem-solving courts that seek to address the underlying problems that brought people into the court system.  There are now courts that deal specifically with with drug, mental health and sex abuse issues as examples.

Judge Kaye received many honors and awards during her lifetime, as well as many honorary degrees.  At Brooklyn Law School’s 93rd commencement exercise on June 14, 1994, Judge Kaye was awarded an honorary degree and gave the commencement address.  At the end of her remarks, I’ll always remember her telling the graduates that she wished them “the same good luck and good sense in the future” as had gotten them to this day.  Spoken, I thought, like a wise judge, woman and mother.

The library has several books in its collection on the New York Court of Appeals, including:

The Judges of the New York Court of Appeals: A Biographical History

The History of the New York Court of Appeals

The Powers of the New York Court of Appeals

 

Supreme Court To Decide If and When RICO Reaches Extraterritorially

On October 1, 2015, the United States Supreme Court granted certiorari to the Second Circuit decision in European Community v. RJR Nabisco, 764 F.3d 129 (2d Cir. 2014). In granting review, the Court will determine whether or not RICO has extraterritorial reach. In examining this issue, the Court may also rule on how to decide whether RICO claims involving multinational parties are domestic ones, and how to determine whether it is an improper or proper extraterritorial claim.

If you would like to learn more about the Racketeer Influenced and Corrupt Organization Act (RICO), check out the library resources below.

Ending the Death Penalty

On June 29, 2015, the final day of its 2014 term, the US Supreme Court ruled in Glossip v. Gross. The Court, in a 5-4 opinion by Justice Alito, ruled that death-row inmates had failed to establish a likelihood of success on the merits of their claim that the use of midazolam, a sedative in Oklahoma’s lethal injection protocol, violates the Eighth Amendment because it fails to render a person insensate to pain. Today, Glossip is scheduled to die by the controversial method that the Court greenlighted this summer unless there is a stay of execution. The case is likely not the final word on the death penalty. Justice Scalia this week Scalia told students at a Memphis college that he “wouldn’t be surprised” if the Supreme Court ruled the death penalty unconstitutional citing Justice Breyer’s dissent that it is time to consider whether the Eighth Amendment bars capital punishment in all cases.

Breyer is not the first Supreme Court justice to invite constitutional debate about the death penalty. Several justices in Gregg v. Georgia, 428 US 153 (1976) bringing back the death penalty later came to reject it. Justice Powell told his biographer that the death penalty should be abolished. Justice Blackmun, wrote in 1994 that he would no longer “tinker with the machinery of death.” In 2008, Justice Stevens wrote that his review of hundreds of cases had persuaded him that the penalty is both profoundly unworkable and unconstitutional. Justice Breyer in his dissent in Glossip argued that the death penalty is unreliable and arbitrary in application citing the long delays that undermine its purpose, convinced that we have executed the innocent. In Rudolph v. Alabama, 375 U.S. 889, (1963), Justice Goldberg’s dissent also suggested that capital punishment might violate the Eighth Amendment. That dissent prompted statewide moratoriums and encouraged cases to be brought to the Court challenging the constitutionality of capital statutes. A decade later, the Court struck them all down in Furman v. Georgia, 408 U.S. 238 (1972). Perhaps, in the wake of Glossip, we are about to travel down that path once again.

BarbellaOn the subject of capital punishment, Brooklyn Law School Library has The Trials of Maria Barbella: The True Story of a 19th Century Crime of Passion by Idanna Pucci (Call #HV6053 .P83 1996). This book illustrates the debate over the death penalty in the late 19th Century in the story of the trial of Maria Barbella for the murder of Domenico Cataldo in New York City on April 26, 1895. Maria and her family immigrated to New York in 1892. She met and became friendly with Cataldo, also from the same region of Italy. One day Cataldo took her to a boarding house, drugged her with the drink he bought her, and took advantage of her. With strong morals about intimacy and marriage, Maria said that they would have to get married. He promised they would marry in several months, even though he was already married to a woman in Italy, with whom he had children. Later Cataldo told Maria that he was going back to Italy and would not marry her. When Maria and her mother confronted him and insisted he marry Maria he said the only way he would do that was if they paid him $200. As the mother stormed away, Maria asked, one last time, whether she would be his wife. When he replied that “Only a pig would marry you“, she drew out her razor and killed him by cutting his throat.

Thus began the saga of Maria Barbella, who shortly became the first woman sentenced to die in the electric chair. She was arrested and put in the New York Halls of Justice and House of Detention (otherwise known as “The Tombs”) for more than two months. Her trial began on July 11. Maria was unable to speak or understand English. She admitted everything: how she slit his throat and how he ran after her, unable to reach her and dropped dead. The jury showed sympathy for her case; but trial Judge John W. Goff asked the jury not to have mercy on Maria. He said, “Your verdict must be an example of justice. A jury must not concern itself with mercy. The law does not distinguish between the sexes. The fragility of the female sex is sometimes involved to excuse savage crimes. We cannot publicly proclaim a woman not guilty of killing a man solely because this man has proposed marriage and then changed his mind!” The jury declared her guilty. On July 18, 1895, Judge Goff sentenced her to “execution by electricity” and sent her to Sing Sing Prison, the first female convict held there in 18 years and the first one on death row.

The case stirred up controversy in the Italian community which felt that the verdict was unjust with no Italians on the jury. Many complained to the Governor about how the trial was handled. On April 21, 1896, the Court of Appeals of New York in People v Barberi, 149 N.Y. 256 (also available on Westlaw Next at this link) ruled that the judgment of conviction should be reversed and a new trial granted. In the second trial at the criminal branch of the New York Supreme Court, she was said to be epileptic and mentally ill because of everything that had happened. She was found not guilty.

NYC Charter Revision Commission Materials Available on BrooklynWorks

fca0bafe8dd2aa68fafbfd4e4291b5c9Recently, the Library completed a digitization project of the papers of Brooklyn Law School’s former dean, the Honorable David. G. Trager. The documents published relate to Judge Trager’s work on two successive New York City Charter Revision Commissions: December 1986-Novemer 1988 and December 1988-November 1989. The digitized documents were selected from materials he donated to the Brooklyn Law School Archives. To access the entire collection, you can contact the reference desk (refdesk@brooklaw.edu) and make an appointment to visit the archives.

Judge Trager was born in Mount Vernon, New York and graduated from Columbia University in 1959 and Harvard Law School in 1962. After four years in private practice, he dedicated his life to public service, fulfilling many roles, including law clerk, federal prosecutor, teacher, state investigation commissioner, administrator, and jurist. From 1974 – 1978, he served as United States Attorney for the Eastern District of New York. Afterward, he began a fifteen-year tenure at Brooklyn Law School, first serving as Professor of Law (1978 – 1983) and then as its Dean (1983 – 1993). In 1993, President Bill Clinton appointed him to the United States District Court for the Eastern District of New York. He attained senior status on March 1, 2006. Judge Trager passed away on January 5, 2011 at the age of 73.