NICHOLSON v. SCOPPETTA

Docket No. 02-7079.

344 F.3d 154 (2003)

Sharwline NICHOLSON, individually and on behalf of her infant children, Destinee Barnett and Kendell Coles and on behalf of all others similarly situated; Destinee Barnett, Kendell Coles, infants; Sharlene Tillett, individually and on behalf of infants Winston Denton and Uganda Gray; Ekaete Udoh, individually and on behalf of her infant children, Edu Udoh, Ima Udoh, Nsikak Udoh and Asuno Udoh; and J.A. and G.A., infants on behalf of all others similarly situated, Plaintiffs-Appellees, v. Nicholas SCOPPETTA, individually and as Commissioner of Administration for Children's Services; City of New York; George E. Pataki, as Governor of the State of New York; John E. Johnson; and State of New York, Defendants-Appellants, Nat Williams, individually and as manager; Bethy Victorin, Denise Degannes, Samuel Halstion, Lisa Clark, Howard Safir, Vivian Lopez, also known as Jane Lopez, Arlene Irizarry, Vincent Stropoli, Brian Martin, also known as James Roe, Jonathan Lippman, Jane Doe, individually and attorney for the Administration for Children's Services John Doe, individually and as Police Officers, Ymsi Holloway, individually and as Supervisor, Cheryl Constantine, individually and as Supervisor, Nidia Cordero, individually and as Supervisor, Dorabella Delamothe, individually and as Manager, Shakira Panther-Wilburg, individually and as caseworker, Sylvia Parris, individually and as a caseworker for the Administration for Children's Services, Jane Dorabella, individually and as supervisor for the Administration for Children's Services and John Tai, individually and as supervisor for the Administration for Children's Services, Defendants.

United States Court of Appeals, Second Circuit.

Decided: September 16, 2003.


Attorney(s) appearing for the Case

Carolyn A. Kubitschek (David J. Lansner, Joanne N. Sirotkin, Brett S. Ward, on the brief), Lansner & Kubitschek, New York, NY, Jill M. Zuccardy, Christine Fecko, Sanctuary for Families, Center for Battered Women's Legal Services, New York, NY, on behalf of Plaintiffs-Appellees Sharwline Nicholson, Sharlene Tillett, Ekaete Udoh, and others similarly situated.

Barrie Goldstein (Monica Drinane, Attorney-in-Charge, Henry Weintraub, Karen Walker Bryce, Judy Waksberg, Betsy Kramer, of counsel), The Legal Aid Society, Juvenile Rights Division, New York, NY, Karen Freedman, Executive Director, Lawyers for Children, Inc., New York, NY, on behalf of Plaintiffs-Appellees Destinee Barnett, Kendell Coles, Winston Denton, Uganda Gray, Edu Udoh, Ima Udoh, Nsikak Udoh, Asuno Udoh, J.A., and G.A., and all others similarly situated.

Alan G. Krams, Assistant Corporation Counsel (Leonard Koemer, Jonathan Pines, Martha Calhoun, Carolyn Wolpert, Krisin M. Helmers, of counsel), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, on behalf of Defendants-Appellants Nicholas Scoppetta and the City of New York.

Robert H. Easton, Assistant Solicitor General (Caitlin J. Halligan, Solicitor General, Michael S. Belohlavek, Deputy Solicitor General, of counsel), for Eliot Spitzer, Attorney General of the State of New York, New York, New York, on behalf of Defendant-Appellants George E. Pataki, John E. Johnson, and the State of New York.

Lawrence S. Lustberg, Philip G. Gallagher, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., Newark, NJ, Lenora M. Lapidus, Emily J. Martin, Women's Rights Project, American Civil Liberties Union Foundation, New York, NY, on behalf of Amicus Curiae American Civil Liberties Union.

Laura K. Abel, David S. Udell, Brennan Center for Justice, New York, NY, on behalf of Amicus Curiae Brennan Center for Justice.

Susan Lambiase, Marcia Robinson Lowry (Eric Thompson, of counsel), Children's Rights, New York, NY, Amit Tandon, White & Case, LLP, New York, NY, on behalf of Amici Curiae Children's Rights, Citizens' Committee for Children of New York, Inc., Judge David J. Bazelon Center for Mental Health Law, Juvenile Law Center, National Center for Youth Law and Youth Law Center.

Yisroel Schulman (Kim Susser, of counsel), New York Legal Assistance Group, New York, NY, on behalf of Amici Curiae Domestic Violence Report, Greater Upstate Law Project, the Greater Five Towns Young Men's & Young Women's Hebrew Association, InMotion, Kansas Coalition Against Sexual and Domestic Violence, Nassau County Coalition Against Domestic Violence, National Coalition Against Domestic Violence, New York Legal Assistance Group, SAKHI for South Asian Women, and STEPS to End Family Violence.

Wilbur McReynolds, Amicus Curiae pro se.

Joanne C. Fray, Law Offices of Joanne C. Fray, Lexington, MA, on behalf of Amicus Curiae National Coalition for Child Protection Reform, Inc.

Fernando R. Laguarda, Noam B. Fischman, M. Elizabeth Gomperz, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, D.C., on behalf of Amici Curiae National Network to End Domestic Violence and National Network to End Domestic Violence Fund.

Lawrence E. Jacobs (Frank S. Moseley, Zachary S. McGee, Kelli Stenstrom, Michael Farbiarz, Elliot Moskowitz, John Gaffney, on the brief), Davis Polk & Wardwell, New York, NY, Michael Miller, Norman L. Reimer, New York County Lawyers' Association, New York, NY, on behalf of Amicus Curiae New York County Lawyers' Association.

Before: WALKER, Chief Judge, OAKES and KATZMANN, Circuit Judges.


Chief Judge JOHN M. WALKER, JR., dissents in a separate opinion.

KATZMANN, Circuit Judge.

Few matters are closer to the core of a State's essential function than the protection of its children against those who would, intentionally or not, do them harm. In this appeal, the City of New York and its chief child-welfare administrator challenge the determination of the United States District Court for the Eastern District of New York (Weinstein, J.) that...

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