Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted July 10, 1995.

Appeal from the United States District Court for the District of Arizona, No. CV-93-02190-PGR; Paul G. Rosenblatt, District Judge.

D.Ariz., 863 F.Supp. 1098.

REVERSED.

Before: HALL, WIGGINS, and LEAVY, Circuit Judges.

MEMORANDUM

On the basis of Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386 (1995), we hold that the drug testing policy at issue in this case does not violate Appellees' rights under the Fourth Amendment of the U.S. Constitution.

Appellees also sought relief under Article 2, Section 8 of the Arizona Constitution. Arizona courts have never interpreted that provision in relation to random drug testing. Because the parties assumed that the Fourth Amendment analysis would be dispositive, the Arizona constitutional issues were given only cursory treatment in the court below and in the briefs to this court. In light of the Supreme Court's recent decision in Vernonia, however, Appellees now argue that Article 2, Section 8 should be interpreted more broadly than the Fourth Amendment in the drug testing context.

Because this issue was insufficiently briefed before argument, we will not consider it. Instead, we dismiss the Arizona constitutional claims without prejudice to Appellees' ability to raise them in a separate action, presumably in Arizona court. This will (if Appellees choose to pursue such an action) give Arizona courts the first opportunity to apply their own Constitution to the issue.

We reverse the decision of the district court on the Fourth Amendment issues and terminate the injunction.