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Supreme Court – One Month Down, Eight to Go!

The past month has been a busy one for the court.  As reported here, the Court denied certiorari in four of the cases highlighted in the our Supreme Court Preview.  It has heard oral argument in two other cases, Florence v. Board of Chosen Freeholders and Rehberg v. Paulk. Prognosticators are divided on how the Court will address the strip search issue in Florence.  The Scotusblog predicts the Court will not announce a single rule while The Volokh Conspiracy sees the Court holding that all arrestees may be strip searched. No one seems ready to predict the outcome in Rehberg, which concerns the complaining witness exception to witness immunity. (The Scotusblog, Washington Post).

As for the remaining cases previewed, no date has been set for oral argument in Filarsky v. Delia and the petition in Armour v. Indianapolis will be considered by the court during its November 10th conference, which is also the due date for respondents briefs in Arizona v. United States and Reichle v. Howards.

An additional petition of interest was filed last month.  Byrne v. Jackler seeks Supreme Court review of a Second Circuit decision that created an exception to the Supreme Courts holding in Garcetti v. Ceballos.   In Garcetti the court denied First Amendment protection to public employees work related speech.  The twist in Byrne is that plaintiff seeks First Amendment protection not for what he said, but for what he refused to say.  A more complete discussion of this petition will be posted later.

Oral Argument Alert

Florence v. Board of Chosen Freeholders of Burlington County, et al. will be argued on Wednesday this week.  Florence addresses the constitutionality of strip searching detainees prior to their housing at jail.  The SCOTUSBlog has a argument preview here

2011 Supreme Court Preview Update

In my Supreme Court Preview I listed seven pending petitions that government attorneys would want to track.  On the first day of the new term the Supreme Court made that task easier, denying cert in four of those cases: Alto Eldorado Partnership v. County of Santa Fe, City of San Leandro v. Int’l Church of the Foursquare Gospel, Dallas County v. Duvall, Szajer v. City of Los Angeles. Leandro and Szajer, were rulings out of the Ninth Circuit, so those of us on the west coast are bound by their holdings.

The three petitions still pending are; Arizona v. United States, Armour v. Indianapolis, Reichle v. Howards. Responses to the petition are outstanding in all three cases.  The Cities brief in the Armour is due October 14th.   The outstanding briefs in the two other cases are due November 10th.

Interestingly, in Armour the City had waived their response but the court requested that they respond anyway. Someone must be interested in that case!  The prospects for merits review of Reichle also seem better as on September 29th the United States and the State of Colorado filed amicus briefs, both urging the court to grant the petition and reverse the Tenth Circuit. (Reversing the Ninth Circuit’s decision in Skoog by implication).  Twenty other states joined in Colorado’s brief.

2011 Supreme Court Preview

October 3rd marks the start of the 2011 term for the United States Supreme Court. The Court has already accepted review of cases addressing the constitutionality of strip searches of jail inmates, qualified immunity for private attorneys working for government clients and absolute immunity for law enforcement officer’s testimony in grand jury proceedings. Many more petitions are awaiting the Court’s decision on if they merit review. Click here to read The Government Litigation Blog’s 2011 Supreme Court Preview and be ready for the changes the Court has in store for state and local governments this term.

Ninth Circuit Whiplash

The Redondo Beach City Attorney isn’t dumb.  His city had a problem with day workers soliciting drivers for jobs.  ACORN v. City of Phoenix, 798 F.2d 1260, 1262 (9th Cir. 1986) had been decided by the Ninth Circuit just six months earlier.  It found a Phoenix ordinance prohibiting just such conduct constitutional. So the solution was clear, have the city adopt the identical ordinance.  No problem, right?  Wrong, at least according to this en banc decision of the Ninth Circuit.

UPDATE  – The Supreme Court denied review on February 21, 2012.