Walker

Walker v. San Francisco Unified School District

Good Law
62 F.3d 300·95 Daily Journal DAR 10390·1995 U.S. App. LEXIS 35257·95 Cal. Daily Op. Serv. 6071
United States Court of Appeals for the Ninth CircuitAugust 2, 1995Nos. 92-15977, 92-15979, 92-15982, 92-15983 and 92-15985California2,467 words

Opinion

Dissenting Opinion

Reinhardt, J.

dissenting from the order rejecting the suggestion for rehearing en banc:

I find it difficult to understand what possible rationale could underlie our court’s decision not to go en banc in this case. A panel of this court voted 2-1 to ignore the clear dictates of the United States Supreme Court as set forth in two major cases. It did so in a sensitive area of constitutional law involving the Bill of Rights. By failing to take this case en bane, we appear to endorse the panel’s refusal to follow Supreme Court precedent and to signal to other panels that they too may ignore the binding effect of Supreme Court cases whenever they believe that the law should be different. Because I am certain that this is not the message the court wishes to send, I can only assume instead that our action today is a product of the fact that the panel’s decision restricts rather than expands the protections afforded by the Constitution. Shrinking the Constitution is a popular course of action in the courts these days.

This ease involves the furnishing of government aid to religious institutions in violation of the First Amendment. As Judge Fernandez explained in his dissent from the panel’s opinion,…

Lead Opinion

ORDER

The order denying the petition for rehearing and rejecting the suggestion for re hearing en banc, filed on July 5, 1995, is ordered published, along with Judge Reinhardt’s dissent from the order rejecting the suggestion for rehearing en banc.

ORDER

The panel has voted to deny rehearing and to reject rehearing en banc.

*301 The panel voted as follows: Judges Tang and Trott vote to deny appellee’s petition for rehearing. Judge Trott votes to deny suggestion for rehearing en bane, Judge Tang recommends rejection of the suggestion for rehearing en banc. Judge Fernandez would grant rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the unrecused active judges in favor of en banc consideration. Fed.R.App.P. 35. Judge Reinhardt dissents from the denial of rehearing en banc and is joined by Judge Pregerson; Judge Hawkins also joins the dissent excepting the first paragraph thereof.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

The dissent is ordered to be filed with…

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