Southern Oregon Barter Fair v. Jackson County

ORDER

Judges Rawlinson and Bybee have voted to deny' the petition for rehearing en banc and Judge Alarcon so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing en banc, filed July 21, 2004, is DENIED.

dissenting from denial of rehearing en banc:

I respectfully dissent from the order denying rehearing en banc. The panel hold,s that a statute governing the issuance of permits for the conduct of events involving First Amendment-protected activity need not contain any deadline by which the permitting authorities will decide whether or not the permit will be granted. The result — as the ■ facts underlying this case demonstrate — is to accord governmental authorities unbridled discretion, through official footdragging, effectively to veto the holding of an event protected by the First' Amendment. The panel’s decision is in square conflict with the very Supreme Court precedent upon which it relies, and will permit administrators to impede parties seeking to engage in First Amendment-protected activity on private property. As the case is both an important one and one in which the panel has seriously misread Supreme Court law, we should have heard it en banc.

*1125 1. My central quarrel with the -panel’s decision is its fundamental misreading of Thomas v. Chicago Park District, 584 U.S. 316 , 122 S.Ct. 775 , 151 L.Ed.2d 783 (2002). The panel rests on Thomas as the pillar of its…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHERN OREGON BARTER FAIR, 

Plaintiff-Appellant, v.

JACKSON COUNTY, OREGON; JACKSON

COUNTY BOARD OF COMMISSIONERS;

JACKSON COUNTY SHERIFF’S No. 02-35560

DEPARTMENT; RIC HOLT; JACK

WALKER; SUE KUPILLAS; ROBERT  D.C. No.

CV-96-03067-CO

KENNEDY, ORDER

Defendants, and

STATE OF OREGON,

Defendant-intervenor- Appellee.  Filed March 24, 2005

Before: Arthur L. Alarcón, Johnnie B. Rawlinson, and Jay S. Bybee, Circuit Judges.

Order; Dissent by Judge Berzon

ORDER

Judges Rawlinson and Bybee have voted to deny the peti- tion for rehearing en banc and Judge Alarcón so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the mat- 3579 3580 SOUTHERN OREGON BARTER v. OREGON ter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc con- sideration. Fed. R. App. P. 35.

The petition for panel rehearing en banc, filed July 21, 2004, is DENIED.

BERZON, Circuit Judge, with whom…