Thank you for sharing!

Your article was successfully shared with the contacts you provided.
With more than half the U.S. Supreme Court’s docket set, it appears the 9th U.S. Circuit Court of Appeals will once again have a feature role on the nation’s premier legal stage. Twelve cases from the nation’s largest appellate court have been picked up by the justices so far, with several among them having the potential to make national headlines. The high court will already hear more cases from the 9th Circuit than it did last year, although the increase so far is slight. More petitions for certiorari are certain to be granted. It’s hard to make generalizations about this year’s crop of cases. There are a few more civil cases than criminal, and both conservative and liberal 9th Circuit judges are up for review. “There really isn’t much of a pattern,” said University of Pittsburgh law professor Arthur Hellman, a close follower of the 9th Circuit. The most prominent case is likely to be Kyllo v. U.S., 99-8508, a Fourth Amendment case, which raises the specter of Big Brother. It will decide whether police can use thermal imagers to scan homes for drug operations. Judge Michael Daly Hawkins wrote the panel opinion upholding police tactics. It was consistent with several other circuits but conflicted with some state court opinions. And it is the only case, so far, where the justices have hinted that they are interested in one of the foundations of the decision. Hawkins sided with the government, in part, because of the Supreme Court’s decision in U.S. v. Place, 462 U.S. 696 (1983), which held that the use of drug-sniffing dogs did not constitute an unreasonable search. But last week, the Supreme Court heard another case, City of Indianapolis v. Edmond, which asks whether the use of such dogs at police checkpoints is constitutional. Several justices, including Antonin Scalia, Stephen Breyer and David Souter, seemed troubled by the police tactics. Another, Sandra Day O’Connor, said the case came down to whether the use of the dogs invaded drivers’ privacy, seemingly framing the decision as something of a referendum on Place. If so, what is expected to be a significant decision about the Fourth Amendment, technology and reasonable expectations of privacy could come down to the dogs. If Place is frowned upon, it weakens the ground on which the government stands in Kyllo. “It’s like holding a thermometer against the wall. Is that a search or not?” asked Sanford Svetcov, a Milberg Weiss Bershad Hynes & Lerach partner who appears frequently before the 9th Circuit. “I always thought the circuit got it right. But maybe that’s the former prosecutor in me,” said Svetcov, who added that he believes it will be the highest-profile 9th Circuit case of the term. John Noonan Jr., a Reagan appointee sometimes considered a libertarian, wrote the dissent in Kyllo. Critics have pointed out that the device can be used to detect two people in an embrace, and Noonan noted that the use of high-powered telescopes to peer into homes is unconstitutional. “No principled difference exists between a machine capable of reading reflections of light that a telescope picks up and a machine reading the emissions of heat as does the [imager],” Noonan wrote. “In each case the amplification of the senses by technology defeats the homeowner’s expectation of privacy.” The 9th Circuit has issued opinions in the Kyllo case several times. The record is well-developed. One observer said Noonan’s lengthy dissent likely caught the court’s attention. “For him to be screaming about civil liberties makes some people raise their eyebrows,” said Rory Little, a professor at the University of California’s Hastings College of the Law. It is also one of at least five Fourth Amendment cases that the court has granted so far this term. “It is a remarkable Fourth Amendment term for the court,” Hellman said. HITTING THE LINKS Another closely watched case, which may grab more headlines than Kyllo when the sports pages are factored in, is PGA Tour v. Martin, 00-24, disabled golfer Casey Martin’s case against Professional Golf Association rules disallowing the use of golf carts under any circumstances. Senior Judge William Canby Jr. wrote the opinion, which held that the PGA was a public accommodation subject to the Americans with Disabilities Act. The Carter appointee was joined by Bush appointee Thomas Nelson and a district judge sitting by designation. Martin conflicts with a 7th Circuit decision issued just days later, and the Supreme Court may use it to discuss the reach of the ADA. “Should someone in a wheelchair be allowed to play in the NBA?” asked Little. “The idea that the ADA applies to sports is a new idea. A lot of people thought it just applied to business. But sports is a big business.” It may also come down to a question that the court addressed last year in Boy Scouts of America v. Dale, 120 U.S. 2446. If the justices decide that a widely employed federal statute such as the ADA doesn’t apply to a private organization — albeit one that is open to the public — Casey Martin’s dreams of touring on the PGA will be over. “Given what they did in Boy Scouts last year, this is important,” said Stephen Wasby, a University of Albany-SUNY political science professor who has written about the relationship between the 9th Circuit and the Supreme Court. “These are allegedly private entities that play a role in the broader public sphere. … If the PGA isn’t covered [by the ADA], that’s the end of it.” A case which will likely affect many people is one that may not necessarily make the evening news. Circuit City Stores v. Adams, 99-1379, will decide whether the Federal Arbitration Act applies to employment contracts. The decision was written per curiam, but simply followed recent precedent from the 9th Circuit and elsewhere. More and more employers are writing mandatory arbitration into employment contracts, and those in the arbitration field will also pay close attention. REINHARDT’S RETURN Judge Stephen Reinhardt also returns to the Supreme Court’s docket after a brief hiatus. In one of several 9th Circuit cases granted certiorari Tuesday, the court agreed to hear Reno v. Ma, 00-38. Reinhardt, joined by Senior Judge David Thompson and Judge Nelson, ruled that the government could not detain prisoners caught in a kind of immigration law limbo. Under current law, the government may expel lawful immigrants who commit felonies. But many — especially those from Cambodia, Laos and Vietnam — cannot be sent back because the United States has no repatriation agreement with their native countries. Instead, the government has kept them jailed indefinitely, even after serving their criminal sentences. After Reinhardt sided with the detainees, the government appealed. The case has been consolidated with a similar 5th Circuit case. Once again, the Supreme Court will be addressing a question left open by Congress. “It’s sort of fascinating that we always turn to the Supreme Court to resolve our most important social issues,” said Little. “They’re in session right now trying to pass a budget. Why is it that the liberty of human beings doesn’t receive the same attention?” Congressional inattention is also behind Central Green Co. v. U.S., 99-859, a tort claim which turns on the definition of flood waters. 9th Circuit Judge Stephen Trott invited the Supreme Court to review his decision. He noted that the Court had previously declined to review the same issue, saying Congress should resolve the legal anomaly it had created. It never did. “We believe this case might be an appropriate subject for Supreme Court review,” Trott concluded. Another case closely watched by civil practitioners will be Cooper Industries v. Leatherman Tool Group, 99-2035, which could set ground rules for how lower courts decide whether a punitive damage award is excessive. In that case, added to the docket on Tuesday, the 9th Circuit upheld a $4.5 million judgment against Cooper Industries last year. Two cases ask First Amendment questions. In Shaw v. Murphy, 99-1613, a Montana prison inmate was reprimanded for giving legal advice to a fellow prisoner. The 9th Circuit, in an opinion by Carter-appointee Senior Judge Betty Fletcher, ordered summary judgment entered in prisoner Kevin Murphy’s favor. Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Assn., 99-1871, may or may not be an important First Amendment case, depending on how far the court goes in clarifying the Freedom of information Act. The water users, competing with a handful of Native American tribes for water use rights, filed FOIA requests for documents that the tribes turned over to the BIA. Saying the papers were an interoffice memo, the government denied the request. The other 9th Circuit cases to be argued are: � Daniels v. U.S., 99-9136, which asks whether a defendant may challenge state convictions when they’re being used to increase sentencing under federal guidelines. Lining up with more conservative circuits, the 9th Circuit ruled prisoners could not challenge their convictions. � Seling v. Young, 99-1185, in which a sex offender challenges his conviction and sentence under a federal sex offender statute. � Bradshaw v. G & G Fire Sprinklers, 00-152, has already been before the Supreme Court, which vacated the decision and ordered the panel to examine the issue under A merican Manufacturers v. Sullivan, 119 U.S. 977. The 9th Circuit ruled — again — that California’s practice of fining subcontractors who fail to comply with prevailing wage requirements was unconstitutional, saying the decision didn’t conflict with Sullivan. Now the case is headed back to the Court, this time for a decision on the merits. � Nevada v. Hicks, 99-1994, which asks whether state officials can be sued in tribal court for actions taken on Native American land. “Is anything a blockbuster? Doesn’t seem like it at this point,” said University of Albany-SUNY’s Wasby. “But one ought to be careful about judging what’s going to be important.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.