Tag: ACLU

An old story finally told: How one party made one argument that won a reversal in the Ninth Circuit Court of Appeals

The Oregon Death with Dignity Act was passed by Oregon voters in November of 1994. Oregon’s novel law did not, however, take effect that year, but was instead immediately enjoined from operation by a federal District Court. Lee v. State, 869 F Supp 1491 (D. Or. 1994). I represented the sponsors of Oregon’s groundbreaking new law on appeal, and we won. In 1997 the Ninth Circuit Court of Appeals reversed the federal District Court and vacated its injunction, Lee v. State of Oregon, 107 F3d 1382 (9th Cir. 1997), allowing the Oregon Death with Dignity Act to go into effect, the first law of its kind.

Three parties appealed the federal District Court’s injunction

Three separate parties appealed the federal District Court’s injunction to the Ninth Circuit Court of Appeals. The three parties were:

  • the State of Oregon (defending the state’s new law);
  • a dying patient represented by American Civil Liberties Union (the ACLU); and
  • the public sponsors of the law (my clients).

Some might wonder why three parties appealed, and weren’t they all doing the same thing?

One party made the difference

At first glance, it would appear that all three parties – the State, the ACLU, and the law’s sponsors – were all doing the same thing. They were, after all, litigating in support of Oregon’s new law. What you may be surprised to learn is that on the key legal issue that won the appeal, the three appellants took very different legal positions.

The key legal issue that persuaded the Ninth Circuit Court of Appeals was “standing.” Standing is a concept rooted in Article III of the federal Constitution. To establish standing, the legal challengers of the Oregon Death with Dignity Act must have established that they suffered sufficient harm or injury to themselves. Mere hypothetical harm would not be enough to confer standing upon the plaintiffs. If the plaintiffs did not have standing, the federal courts would not have jurisdiction (power) to decide the case, and the plaintiffs’ case must be dismissed.

In this case, the State of Oregon decided not to argue that the plaintiffs lacked standing. The State explained that for reasons of judicial economy, it would prefer that the federal courts reach (decide) the legal merits of the case, rather than simply dismiss the case on a procedural basis. The State did not want to come back another day to litigate the same issues against new plaintiffs that may have standing.

Similarly, the ACLU decided not argue that the plaintiffs lacked standing because the ACLU works steadily to expand, not restrict, the application of standing. The ACLU prefers easy access to the federal courts in order to bring their many legal challenges, and standing is a barrier to easy access.

This left only us, the sponsors of the law, to argue that the plaintiffs lacked standing to litigate. Our goal was to win. We did not have other priorities. Standing became our key argument.

As history will tell, the Ninth Circuit Court of Appeals reversed the federal District Court on this ground alone, and, in the 17 years since, no federal court has ever reached the merits of the plaintiffs’ nonexistent, hypothetical injuries.

From a Constitutional perspective, the standing doctrine served its intended purpose by screening from the federal courts purely hypothetical claims of injury. Best of all, however, the standing doctrine provided us with the key legal argument to win a reversal and free the Oregon Death with Dignity Act from the federal District Court’s injunction.

The lesson: Seemingly like-minded appellants may have different legal interests

Although I could provide you with other examples from other appeals, this example make the all important point that seemingly like-minded appellants may have different legal interests and priorities that will influence, if not interfere with, important litigation decisions and tactics. With this example in mind, if you have a stake in a high profile piece of litigation, do not assume that seemingly like-minded litigants are necessarily implementing the best litigation decisions and tactics.