Volume 37 Number 1 -- Fall 2003

TABLE OF CONTENTS

NINTH CIRCUIT REVIEW

  FOREWORD

The Myth of the Liberal Ninth Circuit

by Erwin Chemerinsky

The Ninth Circuit is frequently criticized for being an exceptionally liberal court that is often reversed by the Supreme Court. Yet, this criticism is unfounded and refuted by statistics. The reality is that the Ninth Circuit is a diverse court that has judges at every point on the ideological spectrum. Especially in cases involving controversial issues, the outcome is dependent on the ideologies of the judges who are hearing the case. An examination of several of the most high profile cases of the last year reveals both the conservative and liberal sides of the Ninth Circuit.

COMMENTS

United States v. Crawford : Has the Ninth Circuit Unnecessarily "Waived" Supervision of Parolees?

by Karin L. Bohmholdt  

In United States v. Crawford , a three-judge panel announced that parole searches may be conducted only under reasonable, individualized suspicion of continuing criminal activity. The decision effectively invalidated California 's parole conditions that require parolees to submit to searches at any time. The Ninth Circuit granted an en banc rehearing, and as of the date of this publication, the case is not yet resolved. This Comment argues that the three-judge panel's holding was unnecessary in light of current Supreme Court jurisprudence. It concludes that the better constitutional rule would be to allow such searches if law enforcement can prove that the search is for legitimate law enforcement purposes.

Resnick v. Adams : The Lawful Denial of a Jewish Prisoner's Right to Keep Kosher?

by Jerry C. Chow  

The Ninth Circuit has clearly established that prisoners have a First Amendment right to be provided with food that satisfies the dietary laws of their religion, subject to restrictions that are reasonably related to legitimate penological concerns. In Resnick v. Adams , the Ninth Circuit held that prison officials lawfully denied a kosher diet to an Orthodox Jewish inmate. The rationale - the prison officials acted reasonably in requiring the inmate to fill out a standard form in order to receive kosher food in light of the legitimate governmental interest in the orderly administration of the Common Fare Program; the inmate's lacking of showing that he would not have been provided with a kosher diet had he filed the proper application; and the fact that allowing inmates, in general, to make requests outside the system by letters sent to various prison officials would frustrate the orderly administration of the program. This Comment reviews the Ninth Circuit's analysis and explores the adequacy of the court's decision denying an Orthodox Jewish inmate's constitutional right to a kosher diet.

Giving Credit Where it is Due? An "Acknowledgment" of Higher Education in America

by Adam R. Gardner  

In Brown v. Li , the United States Court of Appeals for the Ninth Circuit rendered a decision severely restricting students' free speech in public universities. A graduate student at a public university authored a master's thesis receiving approval from his thesis committee. The student later inserted a "Disacknowledgments" section, a profanity-laced chastisement of school and state officials, without the thesis committee's consent. The thesis committee withdrew its approval of the student's thesis thereafter. This Comment critically analyzes the Ninth Circuit's utilization of a deferential standard of constitutional review to affirm the thesis committee's decision. The Ninth Circuit intimated that requiring a graduate student's conformance to established standards for writing a master's thesis, which includes a prohibition against the writing of an acknowledgments section that harshly criticizes school and state officials, serves a legitimate pedagogical purpose. This Comment concludes that the Ninth Circuit's legal reasoning and its ultimate holding punctures the idea that public universities serve as vibrant democratic forums of free expression.

Reinterpreting Jurisprudence: The Right of Publicity and Hoffman v. Capital Cities/ABC, Inc.

by Casondra Kevorkian

In July 2001, the Ninth Circuit Court of Appeals ruled that the First Amendment of the United States Constitution protected the use of actor Dustin Hoffman's image in an article featured in Los Angeles Magazine . This Comment explores the right of publicity and provides a brief legal background of the First Amendment. This Comment then analyzes how the Ninth Circuit came to its decision in Hoffman v. Capital Cities/ABC, Inc. and concludes that the decision was erroneous and has resulted in inconsistent jurisprudence.

One Step Forward, Two Steps Back

by Imbar Sagi

The decision of the Ninth Circuit in California First Amendment Coalition v. Woodford , marks the departure from normally administered right-to-view executions in California provided in Procedure 770. This Comment will address the significance and impact of the decision upon the interests and rights of the public, the media, the inmate, and the government via the prison officials. Furthermore, it will analyze each of the prongs of the Turner test utilized by the Ninth Circuit, and conclude that Procedure 770 should be upheld as constitutional .

Staton v. Boeing : An Exercise in the Abuse of Discretion Standard of Review

by Lindsay Gayle Stevenson

In the recent decision of Staton v. Boeing Co. , the United States Court of Appeals for the Ninth Circuit effectively opened the appellate court as an alternative forum for de novo review of factual questions. In this Comment, Lindsay Stevenson reviews the Ninth Circuit's purported application of the abuse of discretion standard of review to the district court's decision to approve a class action consent decree. Under that standard the Ninth Circuit should affirm if the district court judge applied the proper legal standard and his or her findings of fact were not clearly erroneous. However, by reviewing the facts in an independent manner, the Ninth Circuit failed to afford the district court due deference and trampled the court's findings without justification. This Comment concludes that the Ninth Circuit would do well to draw the abuse of discretion standard back in and to restore appellate review to its appropriate level.

Racial Segregation in California Prisons

by Julie Taylor   

In February 2003, the Ninth Circuit Court of Appeals, in Johnson v. California , clarified the role of constitutional rights for prison inmates, specifically whether segregation based on race should be allowed during the first sixty days of incarceration. This Comment analyzes the four prong test used by the Supreme Court in Turner v. Safley and how the Ninth Circuit applied it to the circumstances in the California prison system. The discussion concludes that the holding in Johnson was correct in light of the unique situation that exists in prisons.

The Significance of Statistical Significance: Ninth Circuit Clarifies Usefulness of Statistical Evidence When Implementing Pay Equity Adjustments in Rudebusch v. hughes

by John Teske

The Ninth Circuit, in Rudebusch v. Hughes , established that evidence of discrimination that is not statistically significant could not be relied upon, on its own, when implementing pay equity adjustments. To do so would violate the equal protection clause of the United States Constitution. Furthermore, pay equity adjustments that are more than remedial violate Title VII of the Civil Rights Act of 1964. Nonetheless, the court granted the defendant, a university president, qualified immunity against the equal protection claim because the law was not sufficiently clear at the time he implemented the adjustments. This Comment argues that the law regarding pay equity adjustments was sufficiently clear so as to bar the defendant from qualified immunity protection. This Comment further argues the importance of such a result in maintaining the legitimacy and hence the future of affirmative action programs.

Coszalter v. City of Salem : Just Whistle While You Work-Expanding First Amendment Protection for the Whistleblowing Employee

by David Uchida

In Coszalter v. City of Salem , the Ninth Circuit expanded the First Amendment protections afforded to whistleblowing employees. This Comment analyzes the court's decision, particularly agreeing with the court's decision to utilize a relaxed "reasonably likely to deter" standard in analyzing First Amendment retaliation claims. This Comment argues that in so holding that the whistleblowing employees in this case were subject to adverse employment actions, the court properly protected future whistleblowing employees wishing to speak out against their employers. Ultimately, this Comment concludes that in providing this greater protection for whistleblowing employees, the court promoted the current and growing trend of societal acceptance for whistleblowing employees.