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CIVIL PRACTICE Parents have no standing to sue alcohol makers Without evidence that their minor children illegally purchased alcohol, parents of those children lack standing to sue alcohol manufacturers for their role in underage alcohol sales, the 6th U.S. Circuit Court of Appeals ruled on July 17. Alston v. Advanced Brands and Importing Co., Nos. 06-1836/3367. In two separate actions, groups of parents sued Anheuser-Busch Cos. Inc. and other alcohol manufacturers alleging that the companies’ advertising caused the illegal purchase of alcohol by their children. Though they could not show any evidence that their children had actually purchased the defendants’ products, the plaintiffs claimed both economic parental rights injuries. They sought to recover money the defendants made off of underage alcohol sales and to enjoin them from further advertising. District courts in Michigan and Ohio dismissed the cases for failure to state a claim. The 6th Circuit affirmed. Calling the plaintiffs’ parental-rights argument “specious,” the court quoted from an earlier holding that in making fundamental decisions about their children’s upbringing, they have no legal right to prevent other parties from attempting to influence their children. There is no economic injury, either, without evidence that the parents’ children actually purchased the defendants’ products. The court suggested the parents could pursue a conversion claim against their children for misspending the parents’ money, or a negligence claim against retailers that allegedly sold the products to their children. Full text of the decision CRIMINAL PRACTICE Charging defendant after she testifies is vindictive A federal prosecutor’s delay in a prosecuting a defendant until after she had testified in her own defense in a different case created an appearance of prosecutorial vindictiveness warranting dismissal of the indictment, the 9th U.S. Circuit Court of Appeals held on July 17. U.S. v. Jenkins, No. 06-50049. Sharon Jenkins was apprehended twice crossing the United States-Mexican border in an attempt to smuggle illegal aliens. However, she was not charged with any crime. About three months later, Jenkins was apprehended at the border again � this time with marijuana in her vehicle. After being charged with importation of marijuana, Jenkins mounted a defense based on her alleged ignorance of the presence of the marijuana. She claimed that she thought she was, once again, being paid to smuggle aliens. While the jury in the marijuana case was deliberating, the government filed alien smuggling charges against Jenkins based on the previous incidents. A California federal court dismissed the smuggling indictment, ruling that the timing of the prosecution created the appearance of prosecutorial vindictiveness. Affirming, the 9th Circuit held that the dismissal of the indictment was proper because penalizing Jenkins for exercising her constitutional right to defend herself violated her right to due process. The court said, “[B]ecause the government could have prosecuted Jenkins for alien smuggling well before she presented her theory of defense at the marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness. The government’s assertion that its case against Jenkins was much stronger after her in-court admission does not suffice to dispel the appearance of vindictiveness.” Failure to assert a right is forfeiture A criminal defendant who failed to assert a double jeopardy claim before a trial judge has forfeited, but not waived, that defense and is therefore entitled to a plain error review on appeal, an en banc 11th U.S. Circuit Court of Appeals held on July 17. U.S. v. Lewis, No. 06-11876. Dominique Lewis pleaded guilty to robbery in a Florida federal court. He was then found guilty of brandishing a firearm during the robbery. On appeal, Lewis argued that trial on the firearm count violated the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. An 11th Circuit panel upheld the conviction, holding that Lewis, by not raising the double jeopardy claim before the trial judge, had waived that defense. Lewis sought a rehearing en banc, asserting that 11th Circuit case law conflicted with U.S. Supreme Court precedent, U.S. v. Olano, 507 U.S. 725 (1993). According to Olano, forfeiture is the failure to make a timely assertion of a right, but waiver is the intentional relinquishment or abandonment of a known right. Fed. R. Crim. P. 52(b) allows an appellate court to correct a plain error that affects substantial rights even if it was not argued before a trial court. Therefore, forfeited claims may be reviewed for plain error, but waived claims may not. Lewis argued that his failure to assert double jeopardy before the trial court was forfeiture, not a waiver, and was thus eligible for plain error review on appeal. The en banc 11th Circuit reversed, holding that its case law was inconsistent with Olano. Lewis, the court said, “took no affirmative steps to waive his right against double jeopardy; he simply failed to assert his right.” Lewis had forfeited his claim and is entitled to plain error review. But the court found no error. The double jeopardy clause protects against successive prosecutions for the same offense, not multiple offenses in a single prosecution. The guilty plea to the robbery did not prohibit prosecution on the firearm count. ELECTION LAW Mich.’s photo ID voting requirement is upheld A voting requirement to show photo identification, or submit an affidavit averring that the voter lacks photo ID before voting, is constitutional, the Michigan Supreme Court ruled in a July 18 advisory opinion requested by the Michigan House of Representatives. In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, No. 130589. Following problems encountered with votes cast during the 2000 national election, the Michigan Legislature proposed to bolster ballot integrity by requiring voters to present a photo ID before voting. Concerned that a previous attorney general’s opinion questioned the constitutionality of such a provision, the state House of Representatives asked the state Supreme Court for an advisory opinion. The Michigan Supreme Court ruled that the ID requirement is a reasonable, nondiscriminatory restriction designed to preserve the “purity” of elections and to prevent abuses that could lead to vote dilution. Further, since the affidavit option means that no voter will have to incur the costs of getting an ID, the requirement does not amount to an illegal poll tax, either. EMPLOYMENT Suit alleging harassment by gay co-worker fails A worker who was fired after anonymously instant-messaging a gay co-worker to “stop staring” is not entitled to relief under Title VII of the Civil Rights Act of 1964, the 7th U.S. Circuit Court of Appeals held on July 17. Bernier v. Morningstar Inc., No. 06-1617. Todd Bernier claimed that his gay co-worker, Christopher Davis, sexually harassed him by staring at him in different locations at their workplace, including taking “an overt, purposeful and glaring look” at Bernier’s penis while they were both standing at the urinals. Bernier sent an anonymous instant message to Davis telling him to stop staring at him. Davis reported the message to company management, which traced it to Bernier. Bernier denied sending the message and was fired. He sued Morningstar Inc. under Title VII. Davis said he has a “lazy” left eye that sometimes made it appear that he was looking off at something. An Illinois federal court granted Morningstar’s motion for summary judgment. Affirming, the 7th Circuit said there was no basis for employer liability, nor did the evidence suggest that retaliatory action had been taken. The court noted that Bernier never took advantage of the company’s sexual harassment complaint procedure. Bernier claimed Morningstar subjected him to a hostile workplace environment because of Davis’s sexual interest in him. But Bernier needed to show that his employer knew of the problem and did not act reasonably to equalize working conditions once it knew. By denying he sent the message, Bernier deprived the company of any notice that he was being harassed. As to Bernier’s claim that Morningstar retaliated against him by firing him after he complained about sexual harassment, the court said Bernier did not engage in statutorily protected expression. His “failure to notify Morningstar of the alleged harassment dooms his retaliation claim.” LEGAL PROFESSION Attorneys must follow rule of conduct, N.J. law Former government lawyers now working in private practice, and the firms they work for, are barred by the New Jersey Conflicts of Interest Law and the Rules of Professional Conduct from participating in matters they were substantially or directly involved with as state employees, the New Jersey Supreme Court ruled on July 19. In re ACPE Opinion 705, No. A-74-2006. Following the mandate of New Jersey’s Rule of Professional Conduct 1.11, which prohibits a former government attorney from representing private clients in matters in which the attorney substantially participated while working for the government, John Van Dalen, an attorney in private practice, wrote to the Division of Law and Public Safety disclosing that while employed by the New Jersey Attorney General’s Office he represented a client in a matter concerning Harbor Cove, a real estate development. The letter informed the division that Van Dalen’s partner, Stephen Brower, a former deputy attorney general, was screened from participation in the matter because of Brower’s responsibilities for legal services to the Department of Environmental Protection in connection with Harbor Cove. The division responded by saying that, in addition to meeting the requirements of Rule 1.11(c), the firm was also required to comply with New Jersey Conflicts of Interest Law N.J. Stat. Ann. � 52:13D-17, which provides that no former state employee may represent any client other than the state in connection with a matter that the employee was “substantially and directly involved” with as a state employee. Van Dalen submitted an inquiry to the Advisory Committee on Professional Ethics on whether Rule 1.11 should prevail over the more restrictive mandates of Section 52:13D-17. The committee issued an opinion that the professional conduct rules should prevail over the ethics rules, which would allow Van Dalen’s and his firm’s continued representation in the development matter. The New Jersey Supreme Court reversed the committee’s opinion. Because the conflicts law serves a legitimate governmental purpose to maintain public confidence, and does not improperly encroach on judicial interests, the court said that comity compels it to defer to the Legislature’s intent. Consequently, attorneys, like all other former public employees, must comply with both sets of rules. Work-product privilege trumps fraud exception An attorney who does not knowingly participate in his client’s crime or fraud may assert the work-product privilege as to his opinion work product, the 8th U.S. Circuit Court of Appeals held on July 20. In re Green Grand Jury Proceedings, nos. 06-3938 and 06-4030. As a result of being the target of an investigation into whether he had received improper payments, a client hired an attorney to represent him, providing a noncriminal explanation for what had occurred. Relying on this explanation, the attorney offered legal advice and drafted documents. Because the government believed the client had knowingly lied to his attorney, a federal grand jury issued subpoenas to the attorney and the attorney’s law firm seeking documents. The law firm produced a privilege log with 1,064 documents claimed to be protected by the attorney-client and work- product privileges. A Minnesota federal court concluded that the crime-fraud exception did not prevent the attorney from asserting the work-product privilege over opinion work product. Affirming, the 8th Circuit agreed that client misconduct of which the attorney is unaware is not a “rare and extraordinary circumstance” warranting an exception to the “nearly absolute immunity” given to opinion work product. TORTS Court may freeze assets without alerting claimant Under the Federal Criminal Forfeiture Statute, a court may issue a restraining order freezing a defendant’s assets, following indictment, without prior notice or a hearing to any private party with claims on those assets, the 5th U.S. Circuit Court of Appeals ruled on July 18. U.S. v. Holy Land Foundation for Relief and Development, No. 04-11282 In 1996, Yaron and Efrat Ungar were killed in Israel in a terrorist attack allegedly perpetrated by the Palestinian group Hamas. In December 2001, the Treasury Department determined that Holy Land Foundation for Relief and Development acted “for or on behalf of” Hamas and was thus a specially designated terrorist under Exec. Order No. 12947. In February 2004, a Rhode Island federal court issued a $116.4 million default judgment, under the Antiterrorism Act of 1991, 18 U.S.C. 2333, against Holy Land Foundation, to the estates’ representative and other Ungar family members. Federal courts in a number of states issued writs of execution. Later in 2004, the U.S. government issued a 42-count indictment against Holy Land Foundation in the Northern District of Texas. The indictment charged the foundation with providing material support to a terrorist organization, tax evasion and money laundering. At the government’s request, a Texas judge, under the criminal forfeiture statute, 21 U.S.C. 853, issued a restraining order, freezing the foundation’s bank accounts in order to preserve assets in the event of conviction. The order blocked the Ungars’ efforts to collect on their judgment. The Ungars appealed, alleging the restraining order was entered without notice to them though they were an adverse party to it. In 2006, a 5th Circuit panel vacated the restraining order, citing U.S. v. Thier, 801 F.2d 1463 (1986), which found that the notice and hearing requirements of Fed. R. Civ. P. 65 applied to “adverse parties” when restraining orders are issued under the criminal forfeiture statute. An en banc 5th Circuit reversed and overturned Thier. The court said that when government is seeking forfeiture and secures an indictment to that effect based on probable cause, a court may issue a restraining order without prior notice or a hearing. In the event of conviction, the court will enter an order of forfeiture, transferring Holy Land Foundation’s assets to the government. It is then that parties asserting a legal interest in the property, such as the Ungars, have the opportunity to petition the court for a hearing to adjudicate the validity of its alleged interest in the property. TRUSTS AND ESTATES No fraud in man’s being guardian of wife’s assets Despite questions about his wife’s mental capacity at the time of their marriage, a trial court erred in rejecting a husband’s request to serve as conservator of her assets because there was no evidence of fraud on the husband’s part, the District of Columbia Court of Appeals held on July 12. In re Penning, nos. 05-PR-455 and 05-PR-457. Ann Penning, a retired attorney living in Spain with assets in the District of Columbia, was diagnosed with reduced mental capacity due to Alzheimer’s disease in 2002 and married Ugo Gramegna in 2003. A legal proceeding in Spain found Penning incompetent, but a District of Columbia trial court held that Gramegna was ineligible to serve as conservator of his wife’s assets because of an apparent conflict of interest due � at least in part � to Penning’s questionable mental condition at the time of their marriage. Reversing, the District of Columbia Court of Appeals, the district’s high court, held that Gramegna was entitled to serve as conservator despite questions about Penning’s mental capacity because there was no finding of actual fraud or conflict of interest. The court said, “The court’s decision to override Penning’s expressed wish to be cared for by her husband and Gramegna’s statutory priority to serve as conservator was flawed because it was based on unproven accusations and suspicions rather than on actual findings of impropriety or conflict of interest.”

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