California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA — AUGUST 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - August 2001
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News / News Briefs
MCLE deadline for Group 3 (last names N-Z) is Feb. 1
Judicial Council launches online self-help center
California lawyers honored for work for homeless, minorities and children
Coy about her future, Reno focuses on women's issues
No bias found against solos
Governor signs two-year fee bill
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Ethics update...
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Trials Digest
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Opinion
From the President - Bar targets unauthorized practice
Microsoft ruling: Foundation to settle
MJP is more than alphabet soup
Letters to the Editor
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Legal Tech - A look back at six years of technology news
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You Need to Know
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MCLE Self-Study
A word from our sponsors
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Let's go surfin' now, everybody's learnin' how
Recovering alcoholic may get to recover his license
Attorney Discipline
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Public Comment
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The U.S. Supreme Court's 2000 term was far more than just Bush v. Gore
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Continued from Page 1
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In another important ruling, with the same split among the justices, in Palazzolo v. State of Rhode Island, 121 S.Ct. ___ (2001), the court expanded the protections of the takings clause of the Fifth Amendment. The court ruled that landowners may challenge government regulations as a taking, even if the laws were in place when the property was purchased.

But there also were many notable cases where Justice O'Connor, or occasionally Justice Kennedy, or even sometimes both, would join with Justices Stevens, Souter, Ginsburg and Breyer to create the majority. For example, in a major ruling concerning voting rights, Hunt v. Cromartie, 121 S.Ct. 1452 (2001), the court held that the government may use race as a factor in drawing election district lines with the effect of benefiting racial minorities, so long as the government's objective is political and not affirmative action.

Justice Sandra Day O'ConnorJustice Breyer's opinion, joined by Justices Stevens, Souter, Ginsburg and O'Connor, said that it is permissible to use race as a factor if the goal, for example, is preserving a safe seat for an African-American incumbent or creating a majority Democratic district; race, however, cannot be the predominant factor if the goal is increasing the number of minority representatives. As election districts are redrawn in every state as a result of the 2000 census, this case will be very important as courts decide countless voting cases.

On the last day of the term, Justice O'Connor joined the four more moderate justices to produce a very important victory for civil rights, holding 5-4 in Zadvydas v. Davis, 121 S.Ct. ___ (2001), that the indefinite detention of non-deportable aliens is illegal. If an alien commits a crime while in the United States, the federal government will deport the person after he or she completes the imposed prison sentence. But if no country will accept the deportation, the person is held in custody indefinitely.

The court, in an opinion by Justice Breyer, said that to accord the federal government such authority would raise grave constitutional issues, so the federal immigration laws were interpreted to deny this power.

Justice Anthony KennedyJustice Kennedy, too, at times was the key swing vote. In Legal Services Corporation v. Velazquez, 121 S.Ct. 1043 (2001), the court declared unconstitutional a federal law that prohibited lawyers receiving Legal Services Corporation funds from challenging welfare laws. Justice Kennedy wrote the opinion in the 5-4 decision and was joined by Justices Stevens, Souter, Ginsburg and Breyer.

No pattern in criminal cases

In criminal cases, there was no consistent pattern; both police and criminal defendants won important rulings. As recently as a few years ago, the Rehnquist court resolved the vast majority of criminal cases in favor of police and prosecutors. But this term, like last year, produced some notable victories for each side.

Some of the decisions were major victories for privacy. For example, in Kyllo v. United States, 121 S.Ct. ___ (2001), the court ruled that the use of thermal imaging devices directed at a home to detect activities within it are a search within the meaning of the Fourth Amendment.

Thermal imaging detects heat and can be used to see what is occurring in a place. In an unusual division within the court, Justice Scalia wrote an opinion joined by Justices Souter, Thomas, Breyer and Ginsburg, finding that the requirements of the Fourth Amendment must be met when there is thermal imaging of a home.

In City of Indianapolis v. Edmund, 121 S.Ct. 447 (2000), the court found, in a 6-3 decision, that drug checkpoints on public streets violate the Fourth Amendment. Indianapolis created roadblocks where the police would peer into cars to look for drugs. The court concluded that this was an impermissible search.

Also, in Ferguson v. City of Charleston, 121 S.Ct. 1281 (2001), the court, in another 6-3 decision, concluded that a public hospital's drug testing of pregnant women was unconstitutional. In both of these cases the court emphasized that these were searches for law enforcement purposes, to gather evidence to be used in criminal prosecutions, and  said that this requires adherence to the requirements of the Fourth Amendment. In both decisions, Justices O'Connor and Kennedy joined with Jus-tices Stevens, Souter, Ginsburg and Breyer to constitute the six-justice majority.

Some important Fourth Amend-ment cases were decided in favor of the police. In Atwater v. City of Lago Vista, 121 S.Ct. 1536 (2001), the court in a 5-4 ruling held that police may arrest a person who commits a misdemeanor, even if the crime carries no possibility of a prison sentence.

A woman in Texas was arrested by the police for not wearing her seatbelt, an offense that under Texas law is punishable by a maximum $50 fine. Justice Souter, in an opinion joined by Rehnquist, Scalia, Kennedy and Thomas, ruled that an arrest in such circumstances is permissible.

The police obviously are not going to use this authority to arrest every person who gets a traffic ticket or jaywalks. But when the police want to harass someone, or if the police want to search someone which is permitted incident to an arrest, then Atwater will be used to allow the arrest.

The result is a significant expansion of police power.

Civil rights plaintiffs lose

Plaintiffs in cases involving federal civil rights statutes generally lose. The most significant changes in the law this term were in the area of federal civil rights statutes. In several 5-4 rulings, Justices O'Connor and Kennedy joined with Rehnquist, Scalia and Thomas to narrow the protections of civil rights laws.

In Circuit City v. Adams, 121 S.Ct. 1302 (2001), the court ruled that employees cannot sue their employers for employment discrimination if they have an employment contract that provides for arbitration of disputes relating to the job. Instead of getting to go to court where there is trial by jury and all of the protections of the judicial system, discrimination claims must go to arbitration when there is such an arbitration clause.

In Alexander v. Sandoval, 121 S.Ct. 1511 (2001), the court held that recipients of federal money cannot be sued for engaging in practices that have a racially discriminatory impact against minorities. Title VI of the 1964 Civil Rights Act says that recipients of federal funds cannot discriminate based on race. Federal regulations under this law provide that those getting federal dollars cannot engage in activities that have a discriminatory effect against racial minorities.

Suits under these regulations have been crucial in challenging a wide array of discriminatory practices ranging from litigation against the Metropolitan Transit Authority to suits about environmental injustices that disproportionately affect minority communities.

Now, however, the court has greatly limited the ability to bring such suits, robbing civil rights plaintiffs of an essential weapon in their fight against race discrimination.

In Buckhannon Board v. West Virginia Department of Health and Human Services, 121 S.Ct. 1835 (2001), the court held that to be a "prevailing party" under a civil rights attorney's fees statute, it is not sufficient that the plaintiff in a lawsuit is a catalyst for legislative action. There must be court-ordered relief, via a judgment or consent decree. This will bar the recovery of attorney's fees in cases where litigation induces the government to change its laws and rules.

Free speech success

Free speech claims often succeed.  For example, in Bartnicki v. Vopper, 121 S.Ct. 1753 (2001), the court held that the First Amendment precludes holding the media civilly liable for broadcasting a tape of a conversation that was illegally intercepted and recorded, so long as the media played no role in the illegal taping and so long as the tape concerned a matter of public importance.

In Lorillard Tobacco Co. v. Reilly, 121 S.Ct. ___ (2001), the court declared unconstitutional a Massachusetts rule restricting advertising of tobacco products. The law precluded outdoor advertisements, such as billboards, within 1,000 feet of a school or playground and required stores selling tobacco products to place any advertisements at least five feet above the ground.

The Supreme Court found that the restrictions on cigarette advertising were pre-empted by federal law and the limits on cigar and smokeless tobacco ads violated the First Amendment's protection of commercial speech.

In Good News Club v. Milford Central School, 121 S.Ct. ___ (2001), the court ruled that the First Amendment is violated by a school's excluding an outside religious organization from use of its facilities because the group engages in prayer and religious instruction. In an opinion by Justice Thomas, the court held that this constituted impermissible restrictions based on the viewpoint of the speech.

Conclusion

As long as there is a United States, Bush v. Gore will be studied and argued about. It, alone, made October Term 2000 one of the most memorable in American history.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California.