Garrison S. Johnson v. State of California James H. Gomez, Director, Department of Corrections James Rowland

Order; Dissent by Judge FERGUSON.

ORDER

The panel has voted unanimously to deny the petition for rehearing. Judge O’Scannlain voted to deny the petition for rehearing en banc, and Judges Hug and Brunetti so recommended.

The full court was advised of the Suggestion for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc consideration.

The Petition and the Suggestion are thus DENIED.

join, dissenting from our court’s denial of rehearing en banc.

I respectfully dissent from the order denying rehearing en banc. Over thirty years ago, the Supreme Court sought to end officially sanctioned racial segregation in our prison system by striking down statutes requiring “segregation of the races in prisons and jails” as violating the Fourteenth Amendment. See Lee v. Washington, 390 U.S. 333, 334 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 (1968) (per curiam). The panel’s opinion threatens to undo that achievement by altogether removing the burden on prison officials to justify fundamentally suspect policies classifying prisoners on the basis of race. The decision impermissibly construes the Court’s decision in Turner v. Safley, 482 U.S. 78, 89 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), to overrule Lee , in the process failing to accord to the Supreme Court the exclusive “prerogative [to] overrule] its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989). The panel’s decision ignores the Supreme Court’s repeated and unequivocal command that “all racial classifications imposed by the government ‘must be…

336 F.3d 1117 Garrison S. JOHNSON, Plaintiff-Appellant, v. State of CALIFORNIA; James H. Gomez, Director, Department of Corrections; James Rowland, Defendants-Appellees. No. 01-56436. United States Court of Appeals, Ninth Circuit. July 28, 2003. Lois D. Thompson, Aaron P. Allan, Tanya L. Forsheit, Proskauer Rose, LLP, Los Angeles, CA, and Jeffrey Thomas Garcia Hilger, Jeffrey T.G. Hilger Law Offices, Culver City, CA, for Plaintiff-Appellant. Sara Turner, San Francisco, CA, for Defendants-Appellees. Before: HUG, BRUNETTI, and O'SCANNLAIN, Circuit Judges. 1 PER CURIAM Order; Dissent by Judge FERGUSON. ORDER 2 The panel has voted unanimously to deny the petition for rehearing. Judge O'Scannlain voted to deny the petition for rehearing en banc, and Judges Hug and Brunetti so recommended. 3 The full court was advised of the Suggestion for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. 4 The Petition and the Suggestion are thus DENIED. 5 FERGUSON, Circuit Judge, with whom Circuit Judges PREGERSON, D.W. NELSON, and…