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February 2009

New Procedure for Appeals in Second Circuit

Gavel2 The United States Court of Appeals for the Second Circuit recently announced that it has adopted some changes in regard to appeals. The notice is set forth below:






Notice to the Criminal Law Bar

Beginning January 15, 2009, the Court will adopt a new procedure for setting the deadlines for filing briefs in all criminal appeals.

The Court will set and “so order” as the filing dates for appellant’s and appellee’s briefs the respective dates proposed by counsel. Unless the case involves a voluminous transcript, the appellant must select a date within 120 days of receipt of the complete transcript, and the appellee must select a date within 120 days of receipt of the appellant’s brief. If counsel requests more than 120 days, the Court may reduce the time for filing the brief.

The automatic 30-day extension is eliminated for all purposes.

Specifically the new procedure operates as follows:

The so-ordered filing dates are firm. A subsequent motion for extension of time to file a brief will be denied absent a most extraordinary circumstance, such as serious personal illness or death in counsel’s immediate family. Appellant’s reply brief must be filed in compliance with FRAP 31.

Appeals in Which No Scheduling Order Has Issued.

Within 14 days of receipt of the complete transcript, appellant must notify the Court and all counsel in writing of the date by which the brief will be filed (the “scheduling notification”). Within 14 days of receipt of appellant’s brief, or the last appellant’s brief in a multi-defendant appeal, the appellee must notify the Court and all counsel in writing of the date by which its brief will be filed. Unless the case involves a voluminous transcript, the appellant must select a date within 120 days of receipt of the transcript, and the appellee must select a date within 120 days of receipt of the last appellant’s brief.

An extension of time to submit the scheduling notification will be denied, absent a most extraordinary circumstance. In the event that a party fails to timely file the scheduling notification, the Court will set a 30-day filing date for the defaulting party’s brief.

Upon docketing an appeal, the Clerk’s Office will issue a docketing notice. Appellant retains the obligation to order the transcript in accordance with FRAP 10(b)(1) and the Plan to Expedite Criminal Appeals. In addition, appellant must now notify the Clerk’s Office if the complete transcript is not received within 30 days of the transcript order. Appellant must include in this notice documentation of the efforts made to obtain the transcript. Appellant is further required to update the Court in 14-day intervals until the complete transcript is received. During this time the Clerk’s Office will undertake to facilitate delivery of the transcript.

Appeals in Which a Scheduling Order Has Issued.

Absent a most extraordinary circumstance, the extension granted upon this motion will be the last. The elimination of the automatic 30-day extension applies to these cases.

January 14, 2009

A party seeking an extension of time to file a brief in a case in which a scheduling order has issued but the transcript has not yet been received should follow the procedure set forth supra. A party seeking an extension where a scheduling order has issued and the complete transcript has been received must include in the motion papers all prior extensions granted in the case and state a proposed date for filing the brief. If more than 120 days has already lapsed from the receipt of the complete transcript or appellant’s brief, counsel is advised to propose a minimal extension.

The New York Legal News Round Up

Latest_news It's a cold, snowy Wednesday and time for the weekly round up of law-related news headlines:

Carelessness Trumps the Exclusionary Rule


This week's Daily Record column is entitled "Carelessness Trumps the Exclusionary Rule."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Carelessness Trumps the Exclusionary Rule

In February 2008, I wrote an column about the U.S. Supreme Court’s decision to grant certiorari in Herring v. U.S.

I predicted the court would conclude that the exclusionary rule did not apply to the facts of the case. At issue in Herring was whether the exclusionary rule should apply to evidence discovered during an unlawful arrest, when a suspect’s arrest is based on erroneous information from another law enforcement officer. Herring was arrested based on an arrest warrant that was recalled, but not purged, from the
computer database, as it should have been.

Earlier this month, the court issued its decision in Herring v. U.S., No. 07-513, and confirmed my suspicion that it would, once again, chip away at the exclusionary rule:

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not ‘go free because the constable has blundered.’”People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion by Cardozo, J.).

The holding is problematic for any number of reasons, but two of the court’s underlying assumptions are particularly disturbing: One being that any deterrent effect of the exclusionary rule in the case would be “marginal”; the second, that all arrestees are necessarily criminals.

Justice Ginsberg wrote the dissent in the 5-4 decision, noting that the most troublesome outcome likely will be an increase in the wrongful arrests of innocent citizens:

[T]he ‘most serious impact’ of the Court’s holding will be on innocent persons ‘wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.'

She also addressed the concern I previously raised —that a decision holding the exclusionary rule inapplicable in such a situation would remove any incentive to promptly remove recalled arrest warrants from government databases:

The Court assures that ‘exclusion would certainly be justified’ if ‘the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.’ … This concession threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. … In keeping with the rule’s ‘core concerns,’ … suppression should have attended the unconstitutional search in this case.

As Justice Ginsberg notes, widespread use of computer databases is now the norm in America and massive amounts of data are collected, stored and shared among various governmental agencies.

Undoubtedly, such sharing of information has the potential to increase law enforcement’s ability to protect U.S. citizens from harm. The Herring decision, however, essentially guarantees just the opposite will occur. As the economy falters
and budgets tighten, governmental entities most certainly will fail to allocate sufficient resources toward the periodic regulation and review of law enforcement databases, since there is now little, if any, incentive to do so.

As a result, ordinary, law-abiding citizens —especially those with common names or names resembling those on terror watch lists —will bear the brunt of the decision.
Such an outcome is unfortunate, unacceptable and un-American.

The New York Legal Blog Round Up

Blawgs It's Monday and time for the weekly round up of interesting posts from my fellow New York law bloggers:

Coverage Counsel:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Injury Cases Blog:

New York Personal Injury Law Blog: 

Simple Justice:

The Elliot Schissel New York Law Blog:

Wait a Second!:

Define That Term #310

Dictionary_2 Last week's term was G.A.T.T., which is defined as:

General Agreement on Tariffs and Trade-A comprehensive free-trade treaty signed in 1947 by 117 nations, including almost every developed country. The goal of GATT has been to promote global economic growth by encouraging and regulating world trade. Among other things, member countries are required to treat all other member countries equally in the application of import and export tariffs, offer basic copyright protection to authors from member countries, consult with each other about trade matters and attempt to resolve differences in a peaceful manner. GATT created an international regulatory body known as the World Trade Organization (WTO) to enforce compliance with the agreement.

Edward Wiest and Elaine Necht got it right!

This week's term is:

pur autre vie.

As always, no dictionaries.

New York Lawyer Advertising Rules Appellate Argument

Checkmark Last week, the Second Circuit heard arguments in the State's appeal of NDNY's Judge Scullin's ruling that 4 of the previously enacted provisions regarding lawyer advertising were unenforceable.

A summary of Judge Scullin's prior ruling can be found in this prior blog post

As reported in this New York Law Journal article, the appellate judges appeared skeptical that Judge Scullin erred in his ruling.

Within minutes of the start of the hourlong argument in the Second U.S. Circuit Court of Appeals, all three members of the panel had swept past the state's main argument that the restrictions are outside the reach of free speech protection. Instead, they zeroed in on the issue of whether the restrictions were narrowly tailored to their intended purpose.

However, the judges -- Sonia Sotomayor, Guido Calabresi and John M. Walker Jr. -- appeared skeptical of the challengers' claim that Northern District Judge Frederick J. Scullin had erred when he sustained a 30-day moratorium on all forms of communications aimed at mass disaster victims and at other possible personal injury claimants.

The State's Appellate Brief can be found here. The Respondent's brief can be found here.  The State's Reply Brief can be found here.

Also of interest is that on April 1, 2009, new rules of professional conduct will go into effect in New York as described here and codified here.  Much of the language regarding lawyer advertising can be found in Rule 7.1.

I haven't reviewed the new rules extensively at this point, but they appear to adopt much, if not all, of the language from the disputed rules regarding lawyer advertising

I haven't heard anyone discuss the relevance of the rules that will go into effect in April in regard to the issues raised in this appeal. Is the Second Circuit appeal, or at least certain aspects of it, rendered moot by the new rules? 

It would seem that if the Second Circuit upholds the unconstitutionality of the provisions at issue, then the mirror provisions in the new rules would be likewise unconstitutional.  However, if the language is not identical, would it then require the filing of another lawsuit challenging the newest set of ethical rules, if it could be argued that the new rules are slightly different than the old ones?

Your guess is as good as mine.

Medicaid Figures for 2009

Erandisi_2_2 Note:  I am posting the new Medicaid figures for 2009.  The most significant changes are in the individual resource allowance (now $13,800) and in the community spouse's MMMNA (now $2,739). 

Chronic Care Medicaid

Minimum Community Spouse Resource Allowance:  $74,820

Maximum Community Spouse Resource Allowance:  $109,560

Resource Allowance for Individual:  $13,800

Community Spouse Minimum Monthly Maintenance Needs Allowance(MMMNA):  $2,739

Family Member Allowance - Other Eligible Persons - Spousal Impoverishment Situations:  $584

Community Medicaid and SSI-Related Medicaid

Medicaid Only - Monthly - One Person

SSI Income Standards - Medicaid Standard:  $761

SSI Resource Standards - Individual:  $2,000

-Authored by Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy.  Her practice focuses on Trusts and Estates and elder law.

The New York Legal News Round Up

Latest_news It's the middle of the week-but the beginning of a new era-and time for the weekly round up of law-related New York news headlines:

The New York Legal Blog Round Up

Blawgs It's the first day of President Obama's presidency and time for the weekly round up of posts from my fellow New York law bloggers:

Coverage Counsel:

New York Civil Law:

New York Personal Injury Law Blog:

New York Public Personnel Law:

No-Fault Paradise:

Rochester Family Lawyer:

The Law Office of Jeena R. Belil Blog:

  • NYC taxis may get digital cameras to deter and detect accidents