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Legal news from Friday, October 26, 2012




Tennessee appeals court upholds state voter ID law
Dan Taglioli on October 26, 2012 2:39 PM ET

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[JURIST] The Tennessee Court of Appeals [official website] rejected [opinion, PDF] a challenge to the state's voter identification law [SB 16, PDF] Thursday while upholding the validity of Memphis public library cards as acceptable forms of voter ID. The state had argued that the Memphis library is not an entity of the state as defined in the law as an approved provider of acceptable forms of photo ID. In examining the intent of the legislature the court ruled that allowing such local government entities to produce voter IDs is consistent with and furthers the goals of the legislation, and ordered that Memphis library cards immediately begin to be accepted at Tennessee polling places. The three-judge panel then upheld the constitutionality of the voter ID law over larger arguments that it represents an undue burden on individual voters under the Tennessee Constitution [text, PDF]:
The legislature has determined, pursuant to its authority to secure the integrity of elections, that requiring photographic identification will advance the state's interest in preventing in-person voter fraud. We agree that the requirement bears a substantial relation to the state's interest. ... Showing a photo ID is not a significant intrusion or burden. ... The photographic identification requirement, in the context of the statutory scheme, serves the State's interest in the integrity of elections in the least intrusive manner possible.
The court also rejected arguments that the ID requirement constitutes an Equal Protection [Cornell LII backgrounder] violation akin to a poll tax, holding that the fees required for documentation to obtain a photo ID are not tied to voting in that such documents, such as a birth certificate, have "independent value separate and apart from voting." Secretary of State Tre Hargett [official website] praised the decision to uphold the law but announced that the state would appeal the library card order [AP report] to the Tennessee Supreme Court [official website], effectively putting the order on hold pending further appeal.

The issue of voting rights [JURIST backgrounder] remains a contentious issue in the US, particularly in the run-up to the 2012 presidential election. At least 30 states have passed laws [NCSL backgrounder] that require voters to present some form of ID at the polls. Earlier this month the Pennsylvania Commonwealth Court [official website] issued a preliminary injunction [JURIST report] preventing Pennsylvania's new voter ID law [HB 943 materials] from taking effect before the upcoming election. That same week Mississippi Attorney General Jim Hood [official website] announced that his state's voter ID law will not take effect [JURIST report] before the November election. Also this month the US District Court for the District of Columbia [official website] ruled that South Carolina's new voter ID law [A27, text] does not discriminate against racial minorities [JURIST report], paving the way for the law to take effect next year.




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Berlusconi sentenced to 4 years for tax fraud
Michael Haggerson on October 26, 2012 1:49 PM ET

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[JURIST] Former Italian prime minister Silvio Berlusconi [BBC profile; JURIST news archive] was found guilty of tax fraud [judgement, PDF, in Italian] on Friday and sentenced to four years in prison on charges that his media empire Mediaset [corporate website, in Italian] purchased television rights for US movies through offshore companies and falsely declared the costs on its taxes. The prosecutors had asked for a sentence of three years eight months [JURIST report], but the four-year prison term was reduced to one year because of an amnesty law passed in 2006. Both the prison term and a ban on taking political office will not take effect until all of his appeals are exhausted [BBC report]. In addition to Berlusconi, 10 other individuals were on trial. Three individuals were acquitted, including the Mediaset chairman, three were found guilty along with Berlusconi and four were released because the statute of limitations had run. Berlusconi and his co-defendants were also ordered to pay 10 million euros (USD $12.9 million) in damages. Berlusconi stated that the verdict was the result of judicial harassment. Because of the statute of limitations and the fact that the case took six years to complete and two levels of appeals remain, Berlusconi is unlikely to ever serve his sentence.

Berlusconi, who stepped down as prime minister last November, has been a defendant in nearly 50 cases but has never served a single prison sentence due to either successfully appealing or having the statute of limitations on the charge expire. In addition to the tax fraud charges, he is also facing charges of publicly releasing private wiretaps, embezzlement and paying for sex with an underage prostitute [JURIST reports] and abusing his power by having the police release her. In January 2011 the Italian Constitutional Court held hearings and subsequently struck down [JURIST reports] portions of a immunity law backed by Berlusconi that would have granted the premier and other public officials temporary amnesty from any charges while holding office.




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ICC: Kenya must fully cooperate in post-election violence investigation
Michael Haggerson on October 26, 2012 12:48 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Fatou Bensouda [official profile] expressed concern [press release] on Thursday that Kenya's government had delayed in turning over evidence to the ICC regarding the country's 2007-08 post-election violence [JURIST news archive]. Bensouda also expressed concern about witness intimidation and the "increasing climate of fear affecting those perceived to be ICC witnesses, their family members, as well as those perceived to be associated with the ICC." Kenyan government officials assured Bensouda that they would fully cooperate and would turn over the requested evidence in time so that the deadline for the final list of evidence on January 9 could be met. Bensouda stressed that the ICC was a fair and impartial body and that it was committed to bringing guilt individuals to justice:
our motivation is those who are indisputably the real victims of Kenya's PEV—families, women, men, children and babies who have been beaten, killed, burned, raped, mutilated, and dispossessed. For them and for the sake of all Kenyans, it is crucial to break the cycle of impunity and violence. Ensuring justice and accountability can play a part. We stand ready to do our part, but we can not do it alone, it is up to Kenyans to decide to make this happen, within a strong and united Kenya. I hope I can count on Kenyans in this joint endeavour.
Bensouda made this statement on the last day of the Nairobi segment of her visit to Kenya [JURIST report]. The trial of former Kenyan minister William Ruto and journalist Joshua Arap Sang [case materials] will begin [JURIST report] on April 10, 2013, while the trial of Deputy Prime Minister Uhuru Kenyatta and former civil service chief Francis Muthaura [case materials] is to begin on April 11, 2013.

Bensouda was sworn in as ICC Prosecutor [JURIST report] in June. That month the ICC expressed its desire to start the two Kenyan trials simultaneously [JURIST report] to avoid any appearance of bias in the March 2013 presidential election. In May the appeals chamber of the ICC rejected [JURIST report] the jurisdiction challenges in the two cases presented by the defense, clearing the way for trial. The defense lawyers had argued that the court lacks subject matter jurisdiction over the cases. The appeal stemmed from the pre-trial chamber's decision to confirm the charges [JURIST report] against the four men in January. The ICC claimed jurisdiction over the case despite Kenya's calls for dismissal [JURIST report]. The Kenyan government argued that it was capable of prosecuting the accused men domestically.




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Federal appeals court declines to rehear Texas Planned Parenthood funding case
Rebecca DiLeonardo on October 26, 2012 10:40 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Thursday declined to reconsider its August decision allowing Texas to impose a funding ban on clinics affiliated with abortion providers under the state's Women's Health Program [official website]. Planned Parenthood [advocacy website; JURIST news archive] had asked the court to reconsider [JURIST report] an injunction against the law until its constitutionality is determined at trial. A US district court found that the Texas law infringed on Planned Parenthood's freedom of speech rights, but the Fifth Circuit disagreed and lifted the injunction [JURIST report] in August, holding that Planned Parenthood is unlikely to succeed on its freedom of speech claim. The court's denial of a rehearing will allow Texas to implement the law immediately. Texas Governor Rick Perry [official website] applauded [press release] the court's decision and said the state "will immediately begin defunding all abortion affiliates." If Texas implements the funding cuts, the federal government will no longer fund the state's Women's Health Program, but Perry has promised that he will use state funds [press release] to maintain the program.

This is the latest development in the ongoing reproductive rights controversy [JURIST backgrounder] in the US. The US Court of Appeals for the Seventh Circuit on Tuesday upheld an injunction [JURIST report] against an Indiana law that would block Medicaid funding for abortion providers. Last week a federal judge blocked a similar bill [JURIST report] that would have defunded Planned Parenthood in Arizona. In August the Fifth Circuit upheld Louisiana's Act 490, which allows the Department of Health and Hospitals (DHH) to revoke an abortion clinic's license [JURIST report] immediately after a regulation violation, rather than allowing the abortion clinic time to comply with the regulation. That same month, a Kansas judge refused to dismiss a lawsuit [JURIST report] challenging the state's new abortion clinic regulations after state officials asked that they be upheld without a trial. In July a federal judge blocked a Mississippi law [JURIST report] that would have effectively shut down the state's only abortion clinic.




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UN rights expert urges promotion of freedom of religious conversion
Dan Taglioli on October 26, 2012 10:21 AM ET

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[JURIST] UN Special Rapporteur on freedom of religion or belief Heiner Bielefeldt [official website] presented a report [text, PDF] to the General Assembly [official website] Thursday urging all member states to protect freedom of belief [press release] as it applies to religious conversion. Bielefeldt's report documents his analysis of global patterns of abuses in the area of religious conversion [UN News Centre report], detailing violations in which people are either restricted in their rights to conversion or are forced to convert or reconvert to become more "acceptable" to the society in which they live. The study points out that such abuses are usually carried out with an aim toward promoting national identity or protecting societal homogeneity, sometimes officially conducted under other pretexts such as maintaining political or national security. In his presentation Bielefeldt noted that those who exercise their right to convert are often subject to contempt and discrimination and other social pressures, but that the state can also impose "insurmountable administrative obstacles" to prevent converts from living out their religious conviction, sometimes involving criminal prosecution and in a few instances capital punishment for heresy or blasphemy. Regarding the right against forced conversion Bielefeldt expressed particular concern over pressure or threats experienced by women in the context of marriage negotiations, and stated that pressure on converts to reconvert to a previous religion is an undernoted issue. Bielefeldt further stated that the right of non-coercive persuasion to convert others to one's religion must also be protected, noting some states' imposition of tight legislative or administrative discriminatory restrictions on religious outreach activities.

Special rapporteurs are independent experts honorarily appointed by the Human Rights Council [official website] to examine and report in an unpaid capacity on a specific regional situation or human rights theme. Earlier this week Special Rapporteur on the independence of judges and lawyers Gabriela Knaul [official profile] made her annual presentation to the General Assembly, suggesting a policy of "strengthening the judiciary from within" in which governments develop anti-corruption bodies to ensure that judges act impartially and are free from political influence [JURIST report]. Earlier this month the special rapporteur on human rights in Iran released a report indicating that the government of Iran is torturing human rights activists [JURIST report] and threatening the activists' families with rape or death. Last month Special Rapporteur on the human right to safe drinking water and sanitation Catarina de Albuquerque [official profile] lauded a new California law that creates a right to safe drinking water [JURIST report].




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China adopts first mental health law
Rebecca DiLeonardo on October 26, 2012 10:08 AM ET

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[JURIST] China's National People's Congress (NPC) [official website] on Friday adopted the nation's first mental health law to protect the rights of the mentally ill, according to a report [text] by the country's state-run news agency. The new law is designed to protect the safety and privacy of individuals with mental illnesses. The law specifically aims to protect the identities and personal information of individuals receiving care in psychiatric facilities. The law is also designed to curb the wrongful institutionalization of individuals who are not mentally ill. China has been criticized by human rights activists [JURIST report] for the state of its psychiatric care. Among the key criticisms were the lack of laws protecting the mentally ill and the lack of protection against forced detention in psychiatric facilities. Human rights advocates in China said the new law is an important step, but expressed concern [WSJ report] that it does not do enough to prevent abuse of the system.

Human rights groups have expressed concern in the past about illegal detention in China. In June Human Rights Watch reported that China's chengguan, a para-police organization charged with enforcing non-criminal administrative regulations, is abusing its power [JURIST report]. The report indicated that although the chengguan are not authorized to arrest citizens or use excessive force, they frequently do both. In March the NPC passed a law [JURIST report] allowing police to detain certain suspects for up to six months in secret detention facilities commonly known as "black jails." In July 2010 Amnesty International urged [JURIST report] the Chinese government to launch an independent investigation into law enforcement conduct during the July 2009 Xinjiang riots [JURIST news archive], accusing police of executing arbitrary arrests and employing excessive force.




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Fifth Circuit upholds ban on handgun sales to people under 21
Cynthia Miley on October 26, 2012 7:30 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Thursday unanimously upheld [opinion, PDF] a ban restricting federally licensed firearms dealers (FFLs) from selling handguns to people under the age of 21. The restrictions were codified in sections of 18 USC § 922 [Cornell LII backgrounder], which passed as part of the Omnibus Crime Control and Safe Streets Act of 1968 [text, PDF]. The National Rifle Association (NRA) [advocacy website] challenged the statute and related regulations on two counts: first, that the ban violates Second Amendment [text] rights in light of the US Supreme Court [official website] holding in District of Columbia v. Heller [opinion, PDF; JURIST report], which prohibited the District of Columbia from banning private handgun ownership, and second, that the ban violates equal protection [Cornell LII backgrounder]. The Fifth Circuit found that the statute passed an intermediate scrutiny test:
We find that the government has satisfied its burden of showing a reasonable means-ends fit between the challenged federal laws and an important government interest. First, curbing violent crime perpetrated by young persons under 21—by preventing such persons from acquiring handguns from FFLs—constitutes an important government objective. ... Second, Congress selected means that were reasonably adapted to achieving that objective. Congress found that the ease with which young persons under 21 could access handguns—as opposed to other guns—was contributing to violent crime, and also found that FFLs—as opposed to other sources—constituted the central conduit of handgun traffic to young persons under 21. Congress, in turn, reasonably tailored a solution to the particular problem: Congress restricted the ability of persons under 21 to purchase handguns from FFLs, while allowing (i) 18-to-20-year-old persons to purchase long-guns, (ii) persons under 21 to acquire handguns from parents or guardians, and (iii) persons under 21 to possess handguns and long-guns.
The judge also rejected the equal protection claim, finding that the laws were rationally related to a legitimate state interest. The case was originally brought in the US District Court for the Northern District of Texas [official website], where Judge Sam Cummings dismissed [opinion, PDF] the NRA's challenge in September 2011.

Challenges of state gun laws have been met with mixed success. In March a judge for the US District Court for the District of Maryland ruled [JURIST report] that a portion of Maryland's handgun permit law was unconstitutional because it violated the Second Amendment. Judge Benson Everett Legg ruled that the law limited individuals' rights to obtaining a permit by requiring a "good and substantial reason," and that the requirement was not reasonably adapted to a substantial government interest of public safety or crime prevention. In July 2010 Chicago citizens filed suit [JURIST report] against the city's gun control ordinance claiming it was unconstitutional. The law was approved [JURIST report] just four days after the Supreme Court ruled in McDonald v. Chicago [opinion, PDF; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government. The regulations were upheld [JURIST report] by a federal judge who cited Heller, holding that the Second Amendment does not prohibit regulation of firearms where that regulation will "effectuate the goal of promoting public safety."




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