D.C. No. CV-94-119-BJR. Original Opinion Previously Reported at:,.
Before: Procter Hug, Jr., Chief Judge, James R. Browning, Mary M. Schroeder, Betty B. Fletcher, Harry Pregerson, Stephen Reinhardt, Robert R. Beezer, Charles Wiggins, David R. Thompson, Ferdinand F. Fernandez, and Andrew J. Kleinfeld, Circuit Judges. Dissent by Judge O'Scannlain; Dissent by Judge Trott.
An active Judge sua sponte requested that the full court rehear this case en banc. The request failed to receive a majority of the votes of the non-recused active Judges. The request is rejected.
O'SCANNLAIN, Circuit Judge, joined by TROTT and KLEINFELD, Circuit Judges, Dissenting from order rejecting request for rehearing en banc by the full court:
By promulgating a new constitutional right, one unheard of in over two hundred years of American history, six men and two women - endowed with life tenure and cloaked in the robes of this court - have enacted by judicial fiat what the people of the State of Washington declined to do at the polls only five years ago.*fn1 By our failure to convene the full court to rehear this case, a mere one-third of the twenty-four active Judges*fn2 eligible to vote has been empowered to strike down criminal laws, not just in Washington, but in Alaska, Arizona, California, Hawaii, and Montana, as well as in Idaho and Nevada to the extent they criminalize assisted suicide through common law, as they currently do. Because our failure to rehear this case as a full court permits a minority of our court to nullify the public will without adequate justification, I must respectfully Dissent.
The Ninth Circuit Court of Appeals is the only appellate court in the federal system (indeed, in either the federal or state appellate systems) which permits a case to be reheard by a limited en banc court.*fn3 In every other federal court of appeals ranging from the smallest, six Judges on the First Circuit,*fn4 to the second largest, seventeen Judges on the Fifth Circuit,*fn5 the full court sits en banc whenever a majority of that court has determined that a three-Judge panel decision merits rehearing.
When Congress enlarged the Ninth Circuit from thirteen to twenty-three Judges in 1978, it also authorized any court of appeals with more than fifteen active Judges to "perform its en banc function by such numbers of members of its en banc court as may be prescribed by rule of the court . . . ." Omnibus Judgeship Act of Oct. 20, 1978, Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633 (codified at 28 U.S.C. §§ 41 note, 46(c)). Pursuant to this congressional authorization, the Ninth Circuit adopted the eleven-Judge limited en banc option in 1980. See Ninth Circuit R. 35-3. Neither of the other eligible circuits has done so.
This is only the third time, according to published orders, that our court has had a vote on whether to rehear a case by the full court. None of the three efforts has been successful. In 1980, the court failed to rehear a nine-Judge decision*fn6 after the court was increased by ten Judges to twenty-three. See United States v. Penn, 647 F.2d 876, 889-91 (9th Cir.) (individual Dissents from failure to grant rehearing en banc by full court by Judges Fletcher, Pregerson, and Ferguson), cert. denied, 449 U.S. 903, 66 L. Ed. 2d 134, 101 S. Ct. 276 (1980). In 1994, a Judge called for rehearing by the full court in Campbell v. Wood, where an eleven-Judge limited en banc court held by a six-to-five vote that hanging, as a form of execution of the death penalty, did not violate the Eighth Amendment prohibition against cruel and unusual punishment. See Campbell v. Wood, 20 F.3d 1050, 1051, 1053 (Part II) (9th Cir.) (Reinhardt, J., Dissenting from failure to grant rehearing en banc by full court), cert. denied, 114 S. Ct. 2125 (1994).
Judge Reinhardt urged in his Dissent from full court rehearing in Campbell that the issue in that case was of the utmost constitutional importance and that it was wrongly decided. 20 F.3d at 1053. The same principles apply to this case, but with even greater force. In contrast to Campbell which simply followed existing law, affirmed the validity of the Washington statute, and made no new constitutional pronouncements, Compassion discovers and enunciates a new constitutional right, not found in the text of the Constitution or even hinted at in any Supreme Court opinion since 1791. In my view, such a solemn and sweeping declaration, particularly when it strikes down the existing statutes and common law of eight out of the nine states of this circuit, should not be undertaken without the express approval of a majority of the members of this court. The public's confidence in the legitimacy of judicial nullification of the will of the electorate is at stake, especially when only one-third of the eligible members of the court has signed on to the holding in this case.
Yet, while disappointing, it is not surprising that we will not rehear this case as a full court. Although one can only speculate, the motives for declining rehearing by the full court undoubtedly run a full spectrum. Some of my colleagues may, of course, be persuaded that the legal analysis made by the eight-Judge majority opinion is indeed sound and should not be revisited. There may be those who oppose full court en banc rehearing to avoid further delay in the hope that the Supreme Court will promptly grant certiorari, which the Attorney General of Washington intends to seek, to reverse an embarrassing judicial excess without further ado. Although our Pasadena Courthouse has a courtroom designed for full court en banc rehearings, there may be those who genuinely tremble at the prospect of up to twenty-eight Judges looming from three tiers of benches, intimidating the hapless appellate advocates. Some of my colleagues may believe that full court en banc rehearing should never occur in any case; there may be those who believe that the court elected in 1980 to use the limited (eleven-Judge) en banc in lieu of a full court en banc.*fn7 And there may be those who, knowing that we have never voted to rehear a case before the entire court since the procedure was established in 1980, fear the disruptive effect which such an event could have on the current congressional efforts to split the circuit or, as presently cast, to establish a commission to examine the realignment of the appellate courts in this country.
Notwithstanding all the foregoing reasons which might possibly have contributed to the decision not to rehear this case as a full court, I respectfully submit that they are outweighed by our obligation to sustain the integrity of this court in the face of a shockingly broad act of judicial legislation.
Contrast this case with the Oregon experience. Unlike the voters of the State of Washington, the electorate in Oregon passed a ballot measure which specifically provided for a regime of physician-assisted suicide and set forth specific procedural safeguards.*fn8 When such a statute is reviewed by this court, it enjoys the benefit of presumptive constitutionality because it has been duly enacted into law through the legislative process. Indeed, the constitutionality of the Oregon statute will soon be tested in this court in the appeal of Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (calendared for appeal before Ninth Circuit, July 9, 1996).
Unlike the Compassion majority, I will not comment on the merits of another case pending before our court. Compassion in Dying v. Washington, 79 F.3d 790, 837-38 (9th Cir. 1996) (en banc) (declaring that the district court "clearly erred" in Lee); see Lee v. Oregon, No. 94-6467, at 8 n.7 (D. Or. May 9, 1996) (unpublished order denying motion to lift or stay injunction) ("the state defendants agree with plaintiffs that the Ninth Circuit's comments about Lee in Compassion in Dying decision were dicta 'and could be considered gratuitous and inappropriate'"). What is significant, however, in the context of Compassion, is that the federal Judge in Oregon "did not hold that states, including Oregon, are precluded from passing laws legalizing physician assisted suicide for terminally ill patients." Lee, No. 94-6467, at 24 (emphasis added). The point is that Oregonians did not need the "good offices" of the Ninth Circuit to make their legislative decision. Because of the Compassion majority, however, eight other states have had such legislation imposed upon them by court edict and, thus, have been deprived of their own right to choose.
By exempting an ill-defined class from Washington's statutory prohibition against assisted suicide, the majority simply appropriates the legislative power of the State of Washington. As Judge Kleinfeld eloquently writes: "That a question is important does not mean that it is constitutional. The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary." Compassion, 79 F.3d at 857, 858 (Kleinfeld, J., Dissenting).
Indeed, the plaintiff-physicians in Compassion present a strong legislative argument, but one that is best addressed to the popularly elected representatives of Washington, who are more capable than we of deciding whether to recognize the exception desired by the plaintiffs here. See Compassion, 79 F.3d at 839, 857 (Beezer, J., Dissenting) ("To declare a constitutional right to physician-assisted suicide would be to impose upon the nation a repeal of local laws. . . . [and to] usurp states' rights to regulate and further the practice of medicine . . . .").
The difference between the Oregon and Washington experiences is compelling. In Oregon, the people acted out of their own free will to legislate; in Washington, the will of this court is imposed on the people contrary to their manifest intent.
As to the merits of this case, the eight-Judge opinion in Compassion simply goes too far for an inferior federal court restricted to following Supreme Court precedent. With utmost respect to my eight colleagues, I am convinced that by misapplying language uniquely crafted by the Supreme Court for application in circumstances wholly inapposite to those presented here, the opinion usurps the state legislative function, and in so doing silences the voice of the people of Washington and defies the Supreme Court's call for judicial restraint in the area of substantive due process.*fn9
The majority fundamentally errs by resting its holding on obvious distortions of the language in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), and Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990). As the Second Circuit recently concluded: "The right to assisted suicide finds no cognizable basis in the Constitution's language or design, even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death." Quill v. Vacco, 80 F.3d 716, 724-25 (2d Cir. 1996); accord Compassion, 79 F.3d at 857 (Fernandez, J., Dissenting) ("no one has an even nonfundamental constitutional right to become what our legal ancestors pithily denominated a felo de se "); People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714, 728 (Mich. 1994) ("We disagree with [the district court in Compassion ] that either Cruzan or Casey preordains that the Supreme Court would find that any persons, including the terminally ill, have a liberty interest in suicide that is protected by the Fourteenth Amendment."), cert. denied, 115 S. Ct. 1795 (1995).
It is clear that the Casey Court upheld the right to abortion more on the basis of stare decisis than on a reasoned reaffirmation of the notion that abortion is a protected liberty interest. See Casey, 505 U.S. 833, 112 S. Ct. 2791, 2817, 120 L. Ed. 2d 674 (joint opinion of Justices O'Connor, Kennedy, and Souter) ("after nearly 20 years of litigation in Roe 's wake we are satisfied that the immediate question is not the soundness of Roe 's resolution of the issue, but the precedential force that must be accorded to its holding"). Furthermore, the Casey Court retreated from the central holding of Roe*fn10 by rejecting the notion that abortion is a fundamental right triggering heightened judicial scrutiny. See Casey, 112 S. Ct. at 2855, 2860 (Rehnquist, C.J., Dissenting) (describing the joint opinion). Considering the Court's refusal to reaffirm the entire holding of ...