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BUSINESS LAW Robbing businessman’s home violates Hobbs Act Robbing the homes of business owners can meet the commerce element of the Hobbs Act, the 1st U.S. Circuit Court of Appeals held on Oct. 4. USA v. Rodriguez-Casiano, No. 04-1037. Following his participation in the robbery of the homes of two Villalba, Puerto Rico, businessmen, a federal jury convicted Osvaldo Rodriguez-Casiano of violating the Hobbs Act, 18 U.S.C. 1951(a), which prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce. Rodriguez claimed that the government had failed to prove beyond a reasonable doubt that the robberies affected interstate commerce. A Puerto Rico federal court denied his motion for judgment of acquittal. The 1st Circuit affirmed, holding that there was evidence that both businesses-a hardware store and a gas company-engaged in interstate commerce, “as much of their inventory was procured from mainland United States suppliers.” Money stolen from the hardware store owner’s home was part of the store’s assets and was earmarked to pay store bills. Similarly, money stolen from the gas company owner’s home was from his work briefcase and would have been used to provide a service for some clients whereby he would cash their Social Security checks and use the proceeds to pay his suppliers. The proof sufficed for a jury to find beyond a reasonable doubt that the robberies depleted the businesses’ assets, which proves the commerce element of the act.   Full text of the decision CIVIL PRACTICE Seized illegal video game counts as contraband The owner of an allegedly illegal video gaming machine is not entitled to a jury trial in a civil forfeiture proceeding over the legality of the machine, the South Carolina Supreme Court ruled on Oct. 3. Mims Amusement Co. v. South Carolina Law Enforcement Division, No. 26046. Law enforcement agents seized a Safari Skill video game from a South Carolina bar. A magistrate ruled that the game was an illegal gambling device, so the game’s owner asked a trial court for a jury trial on that determination. The trial court, ruling that because all devices seized under the illegal gambling device statute were not necessarily illegal gambling devices, sent the case back to the magistrate, saying that if the game was found to be illegal, he could order it destroyed; if he found a dispute over the machine’s legality, a jury trial had to be held on the issue. The state appealed. The South Carolina Supreme Court reversed. A video game owner is not entitled to a jury trial in a civil forfeiture proceeding to determine whether the machine is illegal because, at the moment of seizure, the device is deemed to be an item of contraband per se. The owner’s constitutional rights are satisfied by a post-seizure hearing to determine the legality of the machine, with the right to appeal an adverse ruling. CONSTITUTIONAL LAW First Amendment shields right to Web anonymity To get the identity of an anonymous Web log user in a defamation case, a plaintiff must be able to defeat a summary judgment motion on the underlying facts of his case, the Delaware Supreme Court ruled on Oct. 5. Doe v. Cahill, No. 266, 2005. On a local-issues blog, an anonymous person posted comments about Patrick Cahill, a Smyrna, Del., city councilman, accusing him of “paranoia.” Intending to initiate a libel suit, Cahill obtained the blogger’s Internet address from the blog host, and then got a court order to force Comcast Corp., the owner of the Internet address, to reveal the blogger’s name. The trial court denied Comcast’s motion for a protective order, saying that Cahill had met the good-faith test for unmasking the identity of an anonymous plaintiff. Claiming to be the first state supreme court in the country to review this issue in the context of speech about government and government officials, the Delaware Supreme Court reversed. The court said that, because the good-faith test does not afford adequate First Amendment protections to anonymous bloggers, a defamation plaintiff must be able to support his claim with facts sufficient to defeat a summary judgment motion in order to obtain the identity of an anonymous defendant. Church can limit speech on lot bought from city A city’s sale of a formerly public plaza and related easement to a church for a park where public speech is restricted is not unconstitutional, the 10th U.S. Circuit Court of Appeals held on Oct. 3. Utah Gospel Mission v. Salt Lake City Corp., No. 04-4113. Salt Lake City sold a section of Main Street to the Church of Jesus Christ of Latter-Day Saints, so the church could build a plaza, which, the city hoped, would promote downtown pedestrian traffic and stimulate business. The deed reserved an easement for public access, but stipulated that the church could prohibit expressive conduct on the property. Later, the city sold the easement for consideration. The documents specifically stated that there would be no right of public access to the plaza property, although the city retained a right of re-entry if the church failed to maintain a “landscaped space.” Some plaintiffs sued the city and the church claiming that the plaza was still a public forum, and that the sale of the easement violated the establishment clause of the U.S. Constitution. A Utah federal court granted the church’s motion to dismiss. The 10th Circuit affirmed, saying that the complaint failed to state a claim. For a free speech violation to exist, the church, as sole owner of the plaza, must be a state actor, or the plaza must be a “public forum,” despite its sale to a private owner. Here, the court said, the church’s speech restrictions did not constitute state action under the public function doctrine, nor was the plaza functioning as a “public forum.” Further, the sale of the easement had a secular purpose. Lewd dancing ban is no First Amendment breach A North Carolina town didn’t violate the First Amendment when it banned a woman from a public community center for lewd dancing, the 4th U.S. Circuit Court of Appeals held on Oct. 7. Willis v. Town of Marshall, nos. 03-2252 and 04-1240. After receiving complaints, the town of Marshall, N.C., banned Rebecca Willis from community center musical events, claiming that she engaged in lewd dancing, including simulating sex acts and exposing herself while gyrating with her dance partner. Willis sued, seeking a preliminary injunction, arguing, inter alia, that the town violated her First Amendment free speech and free association rights as well as her right to receive information. A federal magistrate recommended granting Willis’ motion for a preliminary injunction. But a district court denied the motion and granted summary judgment in favor of the town. Affirming in part, vacating in part and remanding, the 4th Circuit held that summary judgment was premature on Willis’ equal protection claim, but, relying on the U.S. Supreme Court’s holding in Dallas v. Straglin, 490 U.S. 19 (1989), the court held that the town committed no First Amendment violation in banning Willis. The court said, “Recreational dancing is not constitutionally protected, so the Town’s decision to prohibit lewd dancing is thus subject to review under the lenient rational-basis standard. And under that standard, a prohibition against lewd or suggestive dancing at the Depot is unquestionably valid.” CRIMINAL PRACTICE Identity-con law violates Ga. venue requirements In allowing prosecution to take place in the county of the victim’s residence, a Georgia state law outlawing identity fraud violated the Georgia Constitution’s requirement that a crime be prosecuted in the county in which the crime took place, the Georgia Supreme Court held on Oct. 3. State v. Mayze, No. S05A1225. Willie Mayze allegedly stole Owanna Lloyd’s wallet in Fulton County, Ga. Mayze allegedly used information in the wallet to access Lloyd’s credit history in DeKalb County, Ga., and he was arrested in Clayton County, Ga., the county where Lloyd lived. DeKalb County prosecutors charged Mayze with violating Georgia’s identity-fraud law, Ga. Code Ann. � 16-9-125, which allowed prosecution in the county of the alleged identity-fraud victim’s residence. Mayze filed a demurrer to his indictment, arguing that the venue order violated Georgia’s Constitution. A trial court granted Mayze’s demurrer. Affirming, the Georgia Supreme Court held the law to be unconstitutional because it allowed prosecution outside of the county where the crime was actually committed. The court said, “To the extent . . . that OCGA � 16-9-125 places venue in the county where the victim resides or is found, irrespective of whether the defendant obtains or records identifying information of the victim or accesses or attempts to access the resources of the victim in the county of residence, the statute violates the constitutional mandate that a crime must be tried in the county where it is committed.” EMPLOYMENT Retired firefighter can’t get disability benefits While a retired firefighter may receive occupational disease benefits for heart disease, he is not entitled to temporary total disability benefits, the Nevada Supreme Court held on Oct. 6. Howard v. City of Las Vegas, No. 42652. Oscar Howard retired after 25 years of service with the Las Vegas Fire Department. Eight years after his retirement, he suffered a heart attack and applied for temporary total disability benefits from the city of Las Vegas. The city denied his claim, and an appeals officer affirmed because Howard was retired at the time of the attack. The trial court affirmed. The Nevada Supreme Court affirmed. Under Nev. Rev. Stat. � 617.457(1), there is a conclusive presumption that heart disease in firefighters employed for five or more years is an occupational disease arising out of employment. Under Nev. Rev. Stat. � 617.420, the calculation of disability compensation is based on the claimant’s average monthly wage during the time period preceding the date of the disability. Since Howard was not earning any wages at the time of his disability, the court determined that he may not collect temporary total disability benefits. However, since his illness did arise out of his employment, he may receive occupational disease benefits because he did lose money in the form of medical expenses for his work-related disability. FAMILY LAW Woman who carried triplets to term is mother Declining to adopt a specific rule for determining the parental rights of a woman who used a third-party’s egg to have a baby, a divided Tennessee Supreme Court nonetheless ruled on Oct. 6 that the mother in this case was the legal parent of the children she carried. In re C.K.G., No. M2003-01320-SC-R11-CV. Charles K. G. and Cindy C., an unmarried couple, decided to have a donor’s egg fertilized by K.G.’s sperm implanted in C.’s womb. C. signed documents acknowledging that any child would not have her genetic material, but that she would be the mother of any children to which she gave birth. Several months after C. gave birth to triplets, the couple split up. C. sought custody of, and child support for, them. K.G. countered that because C. lacked a genetic connection to the children, she was not their mother and did not have standing to bring her suit; he also asked for sole custody of the children. The trial court ruled that C. had standing because she had the intent to give birth to the children as her own. An intermediate appellate court affirmed, adopting an “intent” test from the California Supreme Court, according to which the one who is aiming for procreation is the legal mother. The Tennessee Supreme Court affirmed on narrower grounds, rejecting the use of the California “intent” test, as well as the test based solely on genetics. Instead, the court held that since there was no dispute between C. and the egg donor, the fact that C. agreed to be the children’s legal mother, carried them to term and then gave birth to them, means that she is the triplets’ legal mother. TORTS Court wrong to dismiss landfill death claim A trial court erred in granting summary judgment to a county in a wrongful death action brought by the parents of two minor boys killed at the county’s landfill because the county’s failure to secure the landfill constituted negligence per se, the Idaho Supreme Court held on Oct. 3. O’Guin v. Bingham County, No. 30344. Shaun and Alex O’Guin were killed while playing at the Bingham County, Idaho, landfill when a pit wall collapsed. The boys’ parents, Frank and Leslie O’Guin, sued the county, arguing that the county was negligent because the landfill constituted an attractive nuisance, and the county had failed to secure it. The county countered that because the boys were trespassers, the only duty the county owed was not to endanger their safety, in a reckless and wanton fashion. After a trial court rejected the O’Guins’ attractive nuisance claim, the Idaho Supreme Court remanded the case to the trial court for consideration of the issue of negligence per se. The trial court granted summary judgment to the county as to negligence per se as well. Reversing, the Idaho Supreme Court held that the state district court had erred in requiring the O’Guins to plead and prove a willful and wanton violation of landfill-owner regulations. The regulations in this case alone are sufficient to satisfy the duty element for a negligence per se action.

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