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CONSTITUTIONAL LAW Law restricting adult business locations is OK A municipal ordinance that limits adult businesses to approximately 4% of a city’s area does not violate the U.S. Constitution, the 7th U.S. Circuit Court of Appeals held on Feb. 13. Illinois One News Inc. v. City of Marshall, No. 06-4341. Illinois One News Inc., operator of “The Gift Spot,” an adult book and video store, sued the city of Marshall, Ill., under 42 U.S.C. 1983, arguing that Marshall’s ordinance limiting the placement of adult-oriented businesses within the city violated the First Amendment to the U.S. Constitution as applied to the states via the 14th Amendment. Illinois One argued that because the effective result of the ordinance was that adult businesses were limited to only 4% of the city’s area, the ordinance violated the requirement-articulated by the U.S. Supreme Court in Renton v. Playtime Theatres Inc. and Los Angeles v. Alameda Books Inc.-that local government restrictions on adult businesses have to allow adequate avenues of communication to remain open. An Illinois federal court held for the city. Affirming, the 7th Circuit held that the ordinance did not violate the Constitution because-in addition to the 4% of the city’s area available to adult businesses-there were venues outside of the city where the businesses could locate. “Although Playtime Theatres and Alameda Books conclude that an adult-oriented business is entitled to ‘adequate’ opportunities to sell its wares, neither decision holds that those opportunities must be in the same jurisdiction . . . [t]he constitutional rule is that a person have adequate opportunity to speak, not that the land be in one polity (the City of Marshall) rather than another (Clark County),” the court said, adding, “[w]hether the available land is 25%, 12%, 4%, or even 1% of Marshall’s surface area does not matter.”   Full text of the decision Ala. law banning sale of sexual devices is OK A state law banning the distribution of sexual devices is constitutional because the preservation of public morality provides a rational basis for the statute, the 11th U.S. Circuit Court of Appeals held on Feb. 14. Williams v. Morgan, No. 06-11892. Ala. Code � 13A-12-200.2(a)(1) prohibits the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” The American Civil Liberties Union (ACLU) brought suit on behalf of users and vendors of such sexual devices to enjoin enforcement of the statute. After striking down the law twice, an Alabama federal court, on a third remand from the 11th Circuit, finally denied the ACLU’s motion for summary judgment. The court said that the U.S. Supreme Court decision in Lawrence v. Texas, ruling that public morality was not a sufficiently rational basis to support a Texas sodomy law, didn’t warrant invalidation of the Alabama law. Affirming, the 11th Circuit said that the state’s interest in promoting public morality provides a rational basis for the challenged statute. Distinguishing this case from Lawrence, the court held that the statute in Lawrence criminalized private sexual activity, whereas the Alabama law dealt with public, commercial activity, and states have traditionally been allowed to regulate commercial activity that may be harmful to the public. CRIMINAL PRACTICE Hidden sentence terms warrant plea withdrawal A TRIAL COURT erred in denying a driver’s motion to withdraw his guilty plea to a vehicular manslaughter charge based on the trial court’s failure to advise the driver that part of his sentence could include child support payments to the victim’s children, the Idaho Supreme Court held on Feb. 15. State v. Heredia, No. 32249. Gilbert Heredia pleaded guilty to vehicular manslaughter after a fatal automobile collision, and a magistrate sentenced him to pay child support for the victim’s five minor children in addition to a fine, a jail sentence and community service. Heredia filed a motion to withdraw his guilty plea, claiming that he had not been advised of the child support payments prior to his plea. The magistrate court denied the motion, but a trial court reversed, holding that Heredia was entitled to withdraw his plea because he should have been informed about the court-ordered child support payments. The Idaho Supreme Court affirmed, holding that Heredia should be allowed to withdraw the plea. Although the court acknowledged that Heredia’s counsel had argued against child support payments as part of the sentence, the lawyer’s knowledge could not be imputed to Heredia. The court said, “The record does not show that the defendant was informed of the consequence of child support. It was not listed as a consequence of the plea when Heredia entered his guilty plea. The only mention of child support in the record is at sentencing.” Court must reveal exact contents of jury notes It was error for two trial courts either to fail to disclose a jury’s note or to paraphrase the content of the note to a defendant, the New York Court of Appeals ruled on Feb. 13. People v. Kisoon, nos. 15 and 16. During its deliberations in Ganesh Kisoon’s trial for selling cocaine, the jury sent a note saying it was deadlocked, 10-2, in favor of guilt. The judge paraphrased the note to the parties and instructed the jury to continue its deliberations. The jury convicted Kisoon. An intermediate appellate court reversed, citing the trial court’s failure to disclose the full text of the jury note. During Leon Martin’s trial for murder, the jury sent out several notes seeking to have parts of the jury charge read back to it. The judge did not notify the parties of the notes, and read the charge back. Martin was convicted. The appellate court reversed, citing the judge’s failure to disclose the notes. The New York Court of Appeals, the state’s highest court, affirmed. The court referred to its 1991 holding in People v. O’Rama, which set out procedures for dealing with juror notes, including reading the notes into the record. Lower courts have a “core responsibility” to give meaningful notice to counsel of the specific content of juror communication. Failure to read the note verbatim in Kisoon’s case “deprived counsel of the opportunity to accurately analyze the jury’s deliberations and frame intelligent suggestions for the court’s response.” Suspect’s responses to mother are admissible Although police failed to give a suspect the Miranda warning, a federal district court erred in suppressing the suspect’s responses to questions asked by his mother because her questioning did not constitute an interrogation under Miranda, the 4th U.S. Circuit Court of Appeals held on Feb. 16. U.S. v. Kimbrough, No. 06-4341. Yolanda Kimbrough gave police permission to search her home. During the search, police discovered her son, Damon Kimbrough, in the basement with a supply of cocaine. Police detained Kimbrough and began questioning him. During the questioning, in which the police failed to give proper Miranda warnings, Yolanda Kimbrough asked her son whether there was anything else in the basement. He admitted he had a firearm there. After Damon Kimbrough was charged with cocaine and firearms offenses, a Maryland federal court suppressed evidence of the statements to his mother, holding that Kimbrough’s involvement in the questioning of her son was the equivalent of official custodial interrogation. Reversing, the 4th Circuit held Damon Kimbrough’s statements were admissible. The court said, “Ms. Kimbrough, not the police, initiated the exchange with Appellee. Although the police allowed Ms. Kimbrough to speak with her son, they did so at her urging, in her home. There is no evidence in the record that the officers encouraged Ms. Kimbrough in connection with her questioning of Appellee. Therefore, Appellee’s responses were volunteered for Fifth Amendment purposes because they were not the result of police interrogation.” EMPLOYMENT Suspended employee is not ‘active’ under ERISA AN EMPLOYEE serving a three-day suspension without pay is not “actively at work” and so is not entitled to partial disability benefits for an illness diagnosed during his suspension, the 6th U.S. Circuit Court of Appeals ruled on Feb. 13. Pollett v. Rinker Materials Corp., No. 05-6459. Rinker Materials Corp. placed William Pollett on a three-day unpaid suspension for his role in the breaking of a conveyor belt. During his suspension, a doctor diagnosed various heart conditions and certified that he should not work anymore. Pollett notified Rinker of his doctor’s assessment, but showed up for work after his suspension. Rinker fired Pollett for violating various plant safety standards. Pollett applied for short-term disability benefits under the company’s Employee Retirement Income Security Act (ERISA) plan, contending that he was an active employee at the time of his diagnosis. The plan denied his request, and a Kentucky federal court dismissed his suit. The 6th Circuit affirmed, ruling that an employee who is suspended without pay is not an active employee. An employee on an excused absence would be an active employee, the court said, because that employee suffers no monetary or other penalty for missing work. IMMIGRATION LAW Fear of persecution in Egypt not well-founded An Egyptian national, who is also a Coptic Christian, isn’t entitled to political asylum because he has failed to establish a well-founded fear of persecution at the hands of Muslims in Egypt, the 1st U.S. Circuit Court of Appeals held on Feb. 16. Attia v. Gonzales, No. 06-1065. Henry Attia, an Egyptian national, applied for political asylum, arguing that, as a Coptic Christian, he had suffered persecution in Egypt and that he would be persecuted by Muslims because of his Christian faith. Attia testified that he was discriminated against and beaten due to his Christian faith. An immigration judge denied relief on the ground that the harassment and discrimination Attia experienced in Egypt was not severe enough to constitute persecution, and that there was no indication that he would be persecuted if he returned. He had returned to Egypt before, following a visit to the United States. The Board of Immigration Appeals (BIA) affirmed the immigration judge’s decision. Affirming, the 1st Circuit held that Attia had not established a well-founded fear of persecution required for a grant of asylum. Religious tolerance had improved somewhat in Egypt, the court said, and treatment worse than anything Attia endured had been found not to amount to persecution. Noting that Attia had professional relatives in Egypt, including the Egyptian government’s head of taxation, and that he had traveled to Egypt without incidence, the court said, “Attia’s claim is significantly undermined by the fact that he willingly returned to Egypt after his earlier trip to the United States and that members of his immediate family continue live in Egypt, practice their faith, and work in the government and the professions without incident.”

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