Wayne Acton and Judy Acton, Guardians Ad Litem for James Acton v. Vernonia School District 47j
66 F.3d 217
9th Cir.
1995
Check Treatment

*1 еvery agreement reply papers, challenging state settlement must other than the fair- preceded by settiement, a formal RI/FS before its ness and reasonableness of the approval. any objection failed to raise substantive presents to it." Id. at 117. This case a III. similar situation. We decline to review the reopener issue because it wаs waived when Unconditional Release and Components sufficiently failed to raise it for Reopeners Lack of the district court to rule on it. Components complains thаt the district However, approving even if we determined that court erred in a settlement which Components sufficiently gave overbroad, raised the issue for Nucor an unconditiоnal re- it, argument Specifically, Components us to review the would nonethe lease. the claims that 9622(e)(3)(A), settlement violates CERCLA less fail. As with section sec 9622(fX6)(A) applicablе 9622(f)(6)(A)by failing is not to state § to include reo- settlements in which the EPA is not involved. pener provisions,whichwould allow the Gov- The district court did not abuse its discretion damages ernment to seek further from a approving settling party the CERCLA settlement in this such as Nucor in the event case. investigation pol- that future should uncover parties lution unknown to the at the time of settlеment. The State and Nucor both assert that

Components should not be allowed to raise reopeners

the issue of because it had failed

to do so with the district court and ‍‌​‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​​​​​‌​​‌‌​​​‌‌‌​​‌​​​​‌​‌​‌‍therefore Generally, appellate

it waived the issue. "an court will not hear an issue raised for the appeal." Corp. first time on Whittaker Wayne Judy Acton, Corp., (9th ACTON and Execuair 953 F.2d Cir. guardians 1992). Although bright-line ad litem for James there is no rule Acton, Plaintiffs-Appellants, to determine whether а matter has been below, raised "a workable standard ... argument sufficiently that the for the trial court to rule on it." In re E.R. must be raised VERNONIA SCHOOL DISTRICT 47J, Defendant-Appellee. Fegert, Inc., support that it raised the Com- ponents points only to a footnote in the rec- United States Court of reopeners. However, ord that mentioned Components argue did not in the footnote required reopener that the settlement a Sept. 15, 1995. by failing that it violated CERCLA to include reopener. Indeed, a nowhere in the district reopeners court's does the issuе of appear, which is further indication that Com- ponents did not raise the issue with the

district court or at least did not raise it

"sufficiently". The Second Circuit in In re

Cuyahoga Equipment Corp., 980 F.2d 110

(2d Cir.1992), confronted a similar on ‍‌​‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​​​​​‌​​‌‌​​​‌‌‌​​‌​​​​‌​‌​‌‍the waiver of CERCLA issues. The court

there held that an issue is waived when an

appellant, "in its submission to the district oрposing approval motion and in its

REINHARDT, Judge, Circuit dissenting: strongly disagree with the majority’s re- fusal to allow the Supreme Court to determine whether the School District’s ran- dom drug testing program violates the Ore- gon Constitution. inexplica- unwillingness ble certify question rash, peremptory conclusion that the Ore- gon Constitution affords protec- tion than (as does the Fourth Amendmеnt has recently case) been construed in this stands in direct contradiction to our prior specifically, part —more was not by overruled Court. In our opinion, ‍‌​‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​​​​​‌​​‌‌​​​‌‌‌​​‌​​​​‌​‌​‌‍we concludеd that random, suspicionless drug testing of student athletes violated both the Fourth Amend ment of the U.S. I, Constitution and Article Section 9 Constitution.1 Acton Christ, Mitchell, M. Thomas Lang and v. Vernonia School Smith, Pоrtland, OR, for plaintiffs-appellants. In reversing our deci Timothy Volpert, Shelley R. Larkins, M. sion, Court held that Matterazzo, John A. Wright Davis Tremaine, searches in did not violate the Portland, OR, for defendant-appellee. Fourth Amendment. Vernonia School Dist. —Acton, at —,

47J U.S. 115 S.Ct. at 2397. The Court held that we erred in interpreting Section 9 of the Ore gon Constitution because we based our cоn REINHARDT, Before: BRUNETTI, and clusion an interpretation erroneous FERNANDEZ, Judges. Circuit Fourth Amendment. The declined, however, to reach of whether or Opinion by Judge FERNANDEZ; Dissent not, apart from imposed constraints by Judge REINHARDT. Amendment, the Fourth drug tests FERNANDEZ, Judge: Circuit question Scalia, Justice writing Court, for the Pursuant to the United explicitly left that open issue on remand: Court’s decision in Vemonia School District —Acton, U.S. —, 115 S.Ct. The Ninth Circuit held that Vemonia’s L.Ed.2d 564 and because we are of Policy violated the Fourth Amendment, also, but by reason of that not offer protection under the violation, ¶I, contravened Article 9 of the provisions of Constitution in this Oregon Constitution. Our conclusion that case,1 we affirm judgment of the district the former holding inwas error means court. that the latter holding rested on a flawed premise. We therefore remand the case to deny We effects, search, unreasonable or sei- Oregon Supreme zure; and no upon warrant shall issue but cause, probable oath, supported by or affirma- Article Section 9 of the tion, particularly describing place provides: searched, person thing to bе No law shall right people violate the seized. houses, be secure in persons, papers, and a case which example an proceed- gives for further Appeals its state has found opinion. Id. ings consistent Amend the Fourth protection than us leaves decision v. Lane example, in Nelson “For ment. First, action. possible courses three (1987) (Nelson P.2d 692 County, 304 Or. *3 the analysis of a serious conduct could we effect, I) found, that a in the I random, suspi- not or of whether Oregon the stop violated roadblock 9 Section drug tests сionless authorization, proper of to a lack due Second, we Constitution. Oregon of the the not violate it would fact that despite the to the certify that could Actоn, at Amendment.” Fourth Third, discouraged Supreme Court. omitted). (citation 1518 the of construction of rejection our Nonetheless, majority now concludes the Constitution, could throw we States United Oregon Constitution that peremptorily ran- proclaim that simply and up hands our Unit- protection than the no are consistent drug tests dom, suspicionless random, suspi- against States The ed as well. Oregon Constitution with repeated despite our searches —this cionless desirable the least chosen majority has earlier contrary in our suggestions to the alternatives. these intervening no majority cites opinion. to Acton’s denying In and total explain its swift law to ease Court, the Supreme explain does it capitulation annоunces, opinion are of “we majority its conclu- what, reasoning any, if underlies not Court would that sion. provisions under the protection offer inter- states can beyond question thаt It is case” than in this Oregon Constitution pro- provide to more their constitutions pret offered Court States the United Constitu- States United than does the That tection Constitution. States the Unitеd under assumes, justifi- without majority conclusory state- unsupported wholly just that because explanation, or asser- cation several in conflict direct ment recently a less taken courts have case, federal asser- opinion this in our tions earlier Fourth Amendment view ‍‌​‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​​​​​‌​​‌‌​​​‌‌‌​​‌​​​​‌​‌​‌‍of expansive Fourth our way rested on that in tions Oregon will past, in the than analysis that Amendment arbitrary provision our constitutional Rather rejected. subsequently similarly narrow in a and seizures Oregon searches what accurately reflected assertions presumе that to I no reason see fashion. Oregon’s about have courts said federal recent follow will our Oregon courts Supreme Court the United rights or shrinking constitutional practice otherwise. suggest not con- will Oregon’s that courts assume to correctly states: opinion our example, rights Oregonians’ protect vigilantly tinue that confidence with absolute say can “We fact, the In state under be con will not Oregon Constitution in Acton our Oregon, as courts than protection less strued offer gone of their out recognizes, “have expressly likely highly It is Amendment. Fourth anal- constitutional that federal way to insist protection.” to offer it be found will sei- Oregon search not control ysis does F.3d 23 School Acton Vernonia (cita- Acton, at 1518 23 analysis.” F.3d zure added). Our (emphasis at 1518 omitted). Thus if we take tions con that its “Oregon insists correctly states: word, is no reason there courts at protection give morе provision can stitutional believe and that constitution the federal than newly agree Id., citing v. Car State so.” does sometimes excessively narrow view adopted and 942, 748-50, 946- P.2d 653 aher, 293 Or. Oregon Constitution. Florance, 270 Or. (1982); 47 State allow I would over 182-183, 1208-09 P.2d Section not Article whether Caraher, to decide Or. grounds on other ruled random, suspi- bars state opinion even 748-750, 942. The P.2d аt eionless Doing searches. so would not only proper respect

show the due state courts system,

under our federal it would also en-

sure that correct answer would be

reached.2 conclusion,

In having more faith

wisdom of my the states colleagues than here,

demonstrate grant the motion certify. I am not prepared say

Oregon Supreme Court will decide that the

rights of its school children must shaped *4 frenzy national over the war-on-drugs.

To contrary, given history rugged

individualism and its concern for constitu- rights,

tional Oregon might opt well for a generous enlightened ‍‌​‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​​​​​‌​​‌‌​​​‌‌‌​​‌​​​​‌​‌​‌‍reading of its I respectfully dissent. MILLER,

Erma Plaintiff-Appellant,

UNITED America, STATES

Defendant-Appellee.

United States Court of

Argued and Aug. 8, Submitted 1995. Sept. 18,

Decided panel While the Con- Constitutions. Now that remaining is- decision, original stitution in its doing so there sue involves proper interprеtation of Article served judicial the interests of economy since the Section 9 of the see no random, Actons claimed that suspicionless reason not defer to searches violated both the and the U.S.