author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Craig Bradley GEORGE, aka: Steve Eugene Johnson, Defendant-Appellant.
    No. 93-50707.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 8, 1996.
    Decided June 11, 1996.

      David M. Dudley and Philip Kent Cohen, Los Angeles, California, for defendant-appellant.
    Joseph A. Brandolino, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.
    Before BROWNING, WALLACE and FARRIS, Circuit Judges.
   WALLACE, Circuit Judge:

George appeals from his conviction of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On January 22, 1991, an indictment was filed charging George with two counts of bank robbery. Trial was scheduled for April 30, but on that day, George requested that the court appoint new counsel. The district court granted George’s request and reset the trial for July 16,1991.

On July 15, George, through counsel, moved for a continuance, insisting that he was not prepared for trial. The district court granted George’s motion and set the trial for August 20,1991. George also asked for a new attorney, which the court denied.

On August 2, George again asked that his trial be postponed. The district court recalendared the trial for September 17. On September 19, George once more requested a continuance. He also asked the court to acknowledge him as co-counsel and to appoint a private investigator to assist in his defense. The court granted all of George’s motions, continuing the trial until October 8, appointing an investigator, and giving George co-counsel status. On September 24, the court signed an order which ensured that George received all the benefits of pro se status.

On October 8, George filed ten handwritten motions, including motions for a continuance, a medical and psychological examination, dismissal of his co-counsel, permission to proceed pro se, discovery, dismissal of the judge, copies of transcripts of all prior proceedings in the case, and a new bail hearing. The district court denied all of these motions.

On October 9, prior to the presentation of evidence, the court heard and decided various motions in limine that the government had filed on April 25. George filed two more handwritten motions, asking the court to dismiss his counsel and asking for a new trial. The court denied George’s motions.

On October 15, George filed, and the court denied, more handwritten motions, including a motion for a mistrial and a motion requesting appointment of an anthropologist, a psychologist, and a polygraph specialist. George also filed another motion to proceed pro se. The court responded by making George’s appointed attorney advisory counsel, rather than co-counsel. On the same day, after the close of the government’s case-in-chief, George waived his right to a jury trial and the trial proceeded as a bench trial.

The following day, George filed more handwritten motions, including a motion for another continuance. The court denied the motions and ultimately convicted George of both counts of robbery.

II

George first argues that he did not receive a speedy trial. We review questions of law concerning the application of the Speedy Trial Act (Act) de novo. United States v. Springer, 51 F.3d 861, 864 (9th Cir.1995) (Springer).

The Act, 18 U.S.C. §§ 3161-3174, requires that George’s trial commence within 70 days from the later of the filing of an indictment or his first appearance, barring excludable time. Henderson v. United States, 476 U.S. 321, 326, 106 S.Ct. 1871, 1874-75, 90 L.Ed.2d 299 (1986) (Henderson); 18 U.S.C. § 3161(c)(1). George was arraigned on January 28, 1991, and his trial began 253 days later, on October 8. See United States v. Manfredi, 722 F.2d 519, 524 (9th Cir.1984) (for purposes of the Act, trial “commences” on day voir dire begins). George does not dispute that the time from January 28 to July 14 was properly excluded due to the filing of various pretrial motions. However, George argues that the 85 days between July 15 and October 8, 1991, were nonexcludable and that the delay was impermissible.

On April 25, the government filed three motions in limine. The court heard and decided these motions on October 9, after the jury had been impaneled, but before the presentation of any evidence. The Act specifically excludes time “from the filing of [any pretrial] motion through the conclusion of the hearing on” the motion. 18 U.S.C. § 3161(h)(1)(F); see also Springer, 51 F.3d at 865 (where court hears and decides a motion in limine before trial, time between the filing and the hearing is excludable); Henderson, 476 U.S at 329-30, 106 S.Ct. at 1877 (for pretrial motions that require a hearing, delay can be excluded “whether or not a delay in holding that hearing is ‘reasonably necessary’ ”). As we explained in Springer, the exception in United States v. Clymer, 25 F.3d 824, 830-31 (9th Cir.1994) (holding that time between filing of pretrial motion and hearing was not excludable), applies only when a motion is decided after trial. Springer, 51 F.3d at 865. Thus, the time between April 25 and October 9 was excludable and George was tried within the time required by the Act.

Ill

On one of the many mornings that trial was to commence, George filed a motion requesting that the court appoint a psychologist to determine his competency to stand trial. George argues that the district court should have granted the motion.

A.

George and the government disagree as to the standard of review we must apply when reviewing the district court’s refusal to order an examination pursuant to 18 U.S.C. § 4241. The issue is one of first impression in our circuit.

To determine the level of deference, if any, to be given to a district court’s decision to order or refuse a psychological examination, we begin with the statute’s language. Section 4241 provides:

(a) ... At any time after the commencement of a prosecution for an offense and prior to [ ] sentencing ..., the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent....
(b) ... Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defen-. dant be conducted----

(Emphasis added.) If reasonable cause exists, section 4241(a) requires a district court to conduct a competency hearing. However, even if the existence of reasonable cause requires a competency hearing, the court clearly has discretion to determine whether an examination is also necessary. The statute’s language therefore indicates that we should review a district court’s decision to deny an examination for abuse of discretion. See Tashima v. Administrative Office of the United States Courts, 967 F.2d 1264, 1273 (9th Cir.1992) (statute’s use of term “may” indicates congressional intent to give decisionmaker discretion).

This deferential standard of review is appropriate in light of the standard of review we applied when reviewing denials of examinations requested pursuant to section 4241’s precursor, 18 U.S.C. § 4244. Section 4244 read:

Whenever after arrest and prior to the imposition of sentence ... the United States Attorney has reasonable cause to believe that a person charged with an offense ... may be presently insane or otherwise [ ] mentally incompetent ..., he shall file a motion for a judicial determination of such mental competency ..., setting forth the ground for such belief____ Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused ... tobe examined as to his mental condition by at least one qualified psychiatrist____

(Emphasis added.) The psychiatric examination requested pursuant to section 4244 was essentially mandatory. See United States v. Ives, 574 F.2d 1002, 1005 (9th Cir.1978) (“an initial § 4244 motion gives the moving party a right to a mandatory psychiatric examination of the defendant”). A district court could only deny a defendant’s first motion for a mental examination if it correctly determined that the motion was “frivolous, [was] not in good faith, or [did] not set forth the grounds relied upon for believing that the accused may be incompetent.” United States v. Bradshaw, 690 F.2d 704, 712 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). After the mandatory examination and determination, the district court had the discretion to grant or deny subsequent motions for psychiatric examination. Chavez v. United States, 656 F.2d 512, 517 (9th Cir.1981).

The present section 4241 contains no mandatory examination. The district court now has discretion as to all motions for psychiatric examinations, not just motions made after an initial examination. Thus, we review a denial of an examination under section 4241(b) for abuse of discretion. See United States v. Williams, 998 F.2d 258, 266 (5th Cir.1993) (reviewing denial of mental examination under 18 U.S.C. § 4241 for an abuse of discretion), cert. denied, — U.S. -, 114 S.Ct. 940, 127 L.Ed.2d 230 (1994).

B.

George argued in the district court that a psychological examination was warranted for two reasons. First, he worried that the judge would at some point remove him from the courtroom. In response, the district court stated that George would “be present at the trial” and that it was not “looking to kick [him] out of the courtroom.” Second, George seemed to bé upset that he had been placed in a detention center that also housed “seriously ill, psychiatric patients.” George stated, “the conditions that they have me in around these psychiatric patients ... [is] very confined, it’s affecting me. You know I haven’t been able to sleep since last Friday.” The court told George that it had no authority to improve his accommodations. It also stated that it did not “see any reason to have a psychiatric examination” of George.

George now contends that he had an absolute right to a psychological evaluation because the court could not, as a matter of law, accept his own pro se attempt to establish reasonable cause. See 18 U.S.C. § 4241(a). George asserts that he could not possibly have made an adequate showing if he was in fact incompetent, so it must follow that he has an absolute right to a psychologist’s evaluation. George’s argument, if accepted, would give a competent defendant an absolute right to a medical evaluation merely by filing a frivolous motion pro se. A defendant’s pro se status does not strip a court of its ability to determine whether reasonable cause exists under section 4241(a).

George also insists that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (Ake), and Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), provide a constitutional right to an examination for any defendant. Ake involved an indigent capital defendant’s right to have an expert appointed to assist him in an insanity defense. Even assuming that Ake applies to noncapital cases, George does not argue that his mental condition would be a “significant factor” in the proceeding. See Williams v. Calderon, 52 F.3d 1465, 1473-74 (9th Cir.1995), quoting Ake, 470 U.S. at 74, 105 S.Ct. at 1091-92, cert. denied, — U.S. -, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996). Smith held that an indigent capital defendant had a right to expert psychiatric assistance in preparing his claims of mitigating circumstances. 914 F.2d at 1156. Smith has no applicability here.

The district court had viewed George’s demeanor, read many of his countless letters to the court, and heard his oral arguments. The court found that George was “not nuts,” was a “bright man,” was as “lucid as can be,” and was “calm and articulate.” The court stated that it did not “have any doubt about [George’s] intelligence.” The district court had before it no reason to believe that an examination of George would reveal that he was incompetent to stand trial. To the contrary, his myriad motions and oral presentations before the court indicated that George was quite competent. The district court did not abuse its discretion.

IV

George argues that the district court should have appointed new counsel in response to his numerous requests and constant complaints. We review for abuse of discretion the district court’s denial of George’s motions. United States v. Roston, 986 F.2d 1287, 1292 (9th Cir.), cert. denied, — U.S. -, 114 S.Ct. 206, 126 L.Ed.2d 163 (1993). When deciding whether the district court abused its discretion in .denying a request for substitution of counsel, we consider: “(1) [the] timeliness of the motion; (2) [the] adequacy of the court’s inquiry into defendant’s complaint; and (3) whether the conflict between defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate legal defense.” Id., quoting United States v. Gonzalez, 800 F.2d 895, 898 (9th Cir.1986). The “district court has broad discretion to deny a motion for substitution made on the eve of trial if the substitution would require a continuance.” United States v. Schaff, 948 F.2d 501, 504 (9th Cir.1991) (internal quotation omitted).

The court granted George’s April 30 motion for new counsel. On July 15, George again complained. This time, the court stated that George was “jacking around the system,” and refused to appoint new counsel. On August 2 and September 19, George addressed the court and contended that he was having difficulty contacting his attorney. The court summarily refused to appoint new counsel.

On October 8, George filed ten handwritten motions, one of which was a “Motion For Continuance For Trial To Prepare Motions And To Contact Wittnesses [sic]; And To Dismiss Co-council [sic] and To Proceed Pro. Se. [sic] Alone.” This motion was filed on the day trial was to commence. The district court heard George’s insistence that counsel had a conflict of interest, that counsel was prejudiced against him, that there was a communication problem, and that counsel “didn’t like” him. The court also heard from George’s counsel, who stated that he investigated the alleged conflict, that he and George “communicated frequently,” and that he “visited George often.” George’s complaints were frivolous or caused by his own antics. For example, at one point George complained that he could not reach his attorney, yet counsel indicated that he was forced to turn off his answering machine because George called continuously and used up all of the answering machine tape.

Applying Roston, it is clear that this motion was untimely (the day of trial), the district court made adequate inquiry, and there was no total lack of communication. Although George may have been a difficult client, the record indicates that the line of communication between George and counsel remained open. George has not indicated how, if at all, his defense at trial was inadequate. See United States v. Mills, 597 F.2d 693, 700 (9th Cir.1979) (no abuse of discretion where motion filed week before trial, where granting it would have caused delay, and where defense counsel presented an adequate defense).

George correctly argues that the district court failed to conduct an inquiry on each of the three occasions that George complained orally about his counsel’s conduct. Instead, the district court clearly indicated its frustration with what it deemed to be George’s frivolous and strategic attempts to delay his trial. We do not require a district court to inquire into a defendant’s repeated complaints where they are clearly brought for the purpose of delay. At any rate, immediately before trial eventually commenced George was given an opportunity to explain why he desired new counsel. The district court heard George’s complaints, heard from counsel, and its refusal to appoint substitute counsel was not an abuse of discretion. See United States v. Castro, 972 F.2d 1107, 1109-10 (9th Cir.1992) (no abuse of discretion where motion untimely, where district court questioned defendant and counsel, and where alleged conflict did not undermine communications), cert. denied, 507 U.S. 944, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993).

V

George argues that the district court denied him his right to proceed pro se and that the error is per se reversible. The decision to allow a pro se litigant to proceed with some form of hybrid representation (co-counsel or advisory counsel) is reviewed for abuse of discretion. United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir.), cert. denied, 484 U.S. 852, 108 S.Ct. 154, 98 L.Ed.2d 110 (1987).

On September 19, the court stated to George: “I will sign an order permitting you to appear pro se as co-counsel, not with advisoiy counsel but co-counsel with [defense counsel]---- That is the way it is and the case is going to trial on the 8th of October.” The order itself explicitly gave George “pro se status.”

George insists that he was not given “true” pro se status until October 15. At that time, however, the court simply changed appointed counsel’s role from co-counsel to advisory counsel. Given the court’s never-ending difficulties with George, it was not an abuse of discretion to appoint co-counsel to “protect the integrity of the trial process.” Locks v. Sumner, 703 F.2d 403, 407 (9th Cir.), cert. denied, 464 U.S. 933, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983). It was also not an abuse of the court’s discretion later to change appointed counsel’s role to advisory counsel.

George insists that his status as co-counsel was ineffectual and that he was therefore denied his right to proceed pro se. However, the record indicates otherwise. The court considered and treated George as having pro se status. He addressed the court on many occasion's and argued his own motions. George insists that because his co-counsel was ineffective and should have been dismissed, he was denied full pro se status. But the district court had effectively found that George’s counsel was representing George adequately.

VI

Finally, George argues that the district court abused its discretion by not continuing his trial after appointed counsel was given advisoiy counsel status. We review the district court’s decision to deny a continuance by weighing various considerations on a case-by-case basis. United States v. Mejia, 69 F.3d 309, 314-15, 314 n. 5 (9th Cir.1995). We analyze:

(1) the extent of appellant’s diligence in his efforts to ready his defense prior to the date set for hearing; (2) how likely it is that the need for a continuance could have been met if the continuance had been granted; (3) the extent to which granting the continuance would have inconvenienced the court and the opposing party, including witnesses; (4) the extent to which the appellant might have suffered harm as a result of the district court’s denial.

Id. at 314 (ellipses and citation omitted). The weight accorded to each consideration may vary from case to case; but, “in order to-obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his request.” United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.1985), amended, 764 F.2d 675.

George has not met his burden to establish that the court’s refusal to continue the trial was prejudicial. George does not indicate how a continuance would have helped him. Rather, he argues that a pro se litigant is automatically entitled to a continuance because it would be in “vain to give the accused a day in court with no opportunity to prepare for it.” Armant v. Marquez, 772 F.2d 552, 557 (9th Cir.1985) (citation omitted), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502, 89 L.Ed.2d 902 (1986). However, because George had been given pro se status before the trial began, the court was not required to continue the case in the middle of trial after it reduced appointed co-counsel’s role to advisory counsel.

Nor has George shown how a continuance would have assisted him. His trial had been delayed for nine months and he had the assistance of two different attorneys and a court-appointed investigator. The district court therefore did not abuse its discretion in refusing to continue the trial after appointed co-counsel was made advisory counsel.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    COMPASSION IN DYING, a Washington nonprofit corporation; Jane Roe; John Doe; James Poe; Harold Glucksberg, M.D., Plaintiffs-Appellees, v. STATE OF WASHINGTON; Christine Gregoire, Attorney General of Washington, Defendants-Appellants.
    No. 94-35534.
    United States Court of Appeals, Ninth Circuit.
    June 12, 1996.
    Before: HUG, Jr., Chief Judge, BROWNING, SCHROEDER, FLETCHER, PREGERSON, REINHARDT, BEEZER, WIGGINS, THOMPSON, FERNANDEZ, KLEINFELD, O’SCANNLAIN and TROTT, Circuit Judges.
   AMENDED ORDER

An active judge sua sponte requested that the full court rehear this case en bane. 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. By our failure to convene the full court to rehear this case, a mere one-third of the twenty-four active judges 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 ease as a full court permits a minority of our court to nullify the public will without adequate justification, I must respectfully dissent.

I

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. In every other federal court of appeals ranging from the smallest, six judges on the First Circuit, to the second largest, seventeen judges on the Fifth Circuit, 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 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, 101 S.Ct. 276, 66 L.Ed.2d 134 (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, — U.S. -, 114 S.Ct. 2125, 128 L.Ed.2d 682 (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 reheatings, 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. 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.

II

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. 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.

Ill

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.

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 Conr stitution’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 (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, — U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995).

A

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, 870-72, 112 S.Ct. 2791, 2817 (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 by rejecting the notion that abortion is a fundamental right triggering heightened judicial scrutiny. See Casey, 505 U.S. at 943-44, 952-54, 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 Roe on the merits, and in light of the utter lack of any stare decisis roots for the right to assisted suicide, it plainly appears that Casey is a perniciously thin reed upon which to rest the majority’s radical holding.

The majority draws an absurd parallel between a person’s decision to enlist a doctor’s aid in the, termination of her own life and a woman’s decision to terminate a pregnancy. The majority grounds this novel marriage of two wholly inapposite situations in the poetic language of Casey, in which the Court described an abortion decision as “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Casey, 505 U.S. at 851-53, 112 S.Ct. at 2807; see Compassion, 79 F.3d at 813-14. Engaging in one of the most egregious judicial leaps, the majority discovers a right to assisted suicide by simply concluding that such a right involves “‘one of the most intimate and personal choices a person may make in a lifetime....’” Compassion, 79 F.3d at 813-14.

The majority’s method of constitutional interpretation lays the foundation for the discovery of an endless parade of protected liberty interests involving choices, that could be cast as “intimate” and “personal.” If physician-assisted suicide is a protected “intimate and personal choice,” why aren’t polygamy, consensual duels, prostitution, and, indeed, the use of illicit drugs? Furthermore, if assisted suicide is so clearly protected by the Constitution, why immunize only the physician and those acting under a physician’s supervision? Why wouldn’t the Constitution also immunize family members or Mends who profess compassion for the dying and act without consulting a physician? Indeed, isn’t the Compassion holding the first tangible step down the very “slippery slope” we were assured Roe never authorized?

B

The majority goes on to err by concluding that there is no constitutionally permissible distinction between suicide and refusing medical treatment; such a conclusion ignores a long line of judicial decisions that recognize the distinction. The right to refuse medical treatment is grounded in the common law right to be free of unwanted bodily contact; in contrast, the common law has never recognized a right to assistance in deliberately taking one’s life. The removal of life-support is not the actual cause of death; there, death results from.natural causes. See Stephen Carter, The Culture of Disbelief 236 (1993) (“[assisted suicide] involves not letting the patient die, but making the patient die”).

The majority compounds its error by dramatically expanding the narrow holding of Cruzan, 497 U.S. 261, 110 S.Ct. 2841 (holding that Constitution does not forbid Missouri from requiring clear and convincing evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment). The Cruzan Court merely “assume[d] for purposes of this case” that a competent person does have “a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 279, 110 S.Ct. at 2852; see 2 Alan Meisel, The Right to Die § 18.22, at 498 (2d ed. 1995) (“the Cruzan opinion proceeded on assumptions, not holdings, about the rights of competent patients”).

In Cruzan, the Supreme Court in no way offered support for the recognition of a right to assisted suicide. In fact, the Court not only emphasized that a state has an undeniable interest in the protection and preservation of human life, but also specifically noted that “the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.” Id. at 280, 110 S.Ct. at 2852. The hesitancy and narrowness of the Cruzan holding should have given the majority pause in its endeavor to recognize a new right under the Due Process Clause; instead, the majority inexplicably heralds the highly limited language of Cruzan as a “powerful precedent” in support of the right to assisted suicide.

C

Contrary to the conclusions contained in the majority’s lengthy exegesis, neither the Constitution nor history supports the notion that this court may compel the State of Washington (and eight other western states) to recognize an individual’s right to physician-assisted suicide.

Considering the pains to which the majority has gone to assert the redemptive nature of Judas Iscariot’s suicide and to attribute utilitarian motivations to St. Augustine’s writings on suicide,1 feel obliged to observe that no amount of historical revisionism can cure the constitutional infirmities that plague the majority’s holding. Moreover, the majority’s extensive discussion of historical attitudes toward suicide is beside the point; the proper focus should be on whether a right to assisted suicide is rooted in American history and tradition. Clearly it is not. See, e.g., Cruzan, 497 U.S. at 292-94, 294-96, 110 S.Ct. at 2859, 2860 (Scalia, J., concurring) (“Case law at the time of the adoption of the Fourteenth Amendment generally held that assisting suicide was a criminal offense.”); Quill, 80 F.3d at 724 (“Nor can it be said that the right to assisted suicide claimed by plaintiffs is deeply rooted in the nation’s traditions and history. Indeed, the very opposite is true.”).

The most comprehensive study available on the history of suicide unequivocally concludes that “the weight of authority in the United States, from colonial days through at least the 1970s has demonstrated that the predominant attitude of society and the law has been one of opposition to suicide. It follows that courts should not hold suicide or its assistance to be a protected right under the United States Constitution.” Thomas J. Marzen et al., Suicide: A Constitutional Right?, 24 Duq.L.Rev. 1, 100 (1985).

The Supreme Court has never recognized a substantive due process right without first finding that there is a tradition of protecting that particular interest. Here, there is absolutely no tradition of protecting assisted suicide. Almost all states forbid assisted suicide and some states even permit the use of nondeadly force to thwart suicide attempts. No state has ever accepted consent of the victim as a defense to a charge of homicide. These are the political judgments made by the democratic process; if they are no longer “politically correct,” let the legislatures act to change them, not life-tenured judges immune from the voters’ reach.

IV

Finally, let no one be beguiled into misconceptions concerning Compassion’s actual holding; this case is not about aggressive pain management.

Long before the eight-judge opinion was issued, pain treatments — such as the injection of morphine — have been legal and well-established in the medical community. See American Medical Ass’n, Current Opinions of the Council on Ethical & Judicial Affairs, Code of Medical Ethics § 2.20, at 14 (1992) (“For humane reasons, with informed consent, a physician may do what is medically necessary to alleviate severe pain, or cease or omit treatment to permit a terminally ill patient to die when death is imminent. However, the physician should not intentionally cause death.”).

Furthermore, no physician has ever been imprisoned for properly prescribing pain killers. It is common knowledge that physicians, with the tacit consent of the family, may over-medicate for pain with the risk of accelerating death. So long as the primary intention is to lessen pain, there is no danger of imprisonment. As Judge Kleinfeld emphasizes, under these circumstances, there is a fundamental distinction between putting one in harm’s way and intending death:

Knowledge of an undesired consequence does not imply that the actor intends that consequence. A physician who administers pain medication with the purpose of relieving pain, doing his best to avert death, is no murderer, despite his knowledge that as the necessary dosage rises, it will produce the undesired consequence of death.

Compassion, 79 F.3d at 858 (Kleinfeld, J., dissenting). Clearly, Compassion’s constitutionalization of the right of physicians to prescribe lethal doses for the express purpose of ending the lives of their consenting patients goes far beyond the most aggressive, medically approved pain treatments.

y

The eight-judge majority has not sustained its burden of proving that the Constitution compels a state to recognize, against the will of its people, a right to assisted suicide. However much judges, as individuals, may desire such a right for the terminally ill, we, as judges, are limited by the text of the Constitution and by the Framers’ clear intent that the judiciary be “disassociated from direct participation in the legislative process.” See Dennis v. United States, 341 U.S. 494, 517, 552, 71 S.Ct. 857, 871, 889, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). In the words of Justice Frankfurter: “Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge’s private judgment is deemed unwise and even dangerous.” Id. at 552, 71 S.Ct. at 889.

The constitutionalization of a right to physician-assisted suicide is nothing short of pure invention — constitutionally untenable and historically unprecedented. It is especially egregious when only eight of the twenty-four active judges on our court can nullify the will of the voters of Washington who rejected a physician-assisted suicide law just five years ago.

I respectfully dissent from this court’s improvident refusal to grant rehearing en banc by the full court.

TROTT, Circuit Judge, with whom Circuit Judges O’SCANNLAIN and KLEINFELD, concur, dissenting from the order rejecting the request for rehearing en banc by the full court.

I

Liberty is not the mere absence of restraint, it is not a spontaneous product of majority rule, it is not achieved merely by lifting underprivileged classes to power, nor is it the inevitable by-product of technological expansion. It is achieved only by a rule of law.

Jackson, Justice Robert H., The Supreme Court in the American System of Government 76 (1955).

No magician — not David Copperfield, not even Harry Houdini — can produce a rabbit from a hat unless the rabbit is in the hat to begin with. Moreover, if a hat does not contain such an animal, a magician cannot claim that anything he is able to produce from it is in fact a rabbit, no matter how sincere he may be or how great his forensic skills. All of this has something to do with basic physics.

But law may not be physics, as Judge Reinhardt’s opinion on behalf of our en banc court demonstrates, because, with all respect, he has in fact succeeded in pulling a nonexistent liberty interest out of thin constitutional air, a liberty interest that certainly does not exist in the document itself. I honestly applaud his splendid effort, which is most skillful and elegant, but unfortunately his production is not law either, it is simply constitutional sleight of hand. Maybe some of us or even many of us would like to see this rabbit in the hat because we believe it’s a nice rabbit — hope is an ever-present temptress in a world of woe — but we do not get to change the Constitution any more than we get to change physics. Roger Traynor, the influential former Chief Justice of the California Supreme Court, offered the suggestion that

“one entrusted with decision ... must also rise above the vanity of stubborn preconceptions, sometimes euphemistically called the courage of one’s convictions. He knows well enough that he must disconnect his own predilections, of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience____”

Certainly our job is to interpret the Constitution and to apply its principles and purposes in a modern setting, but we must also take great care not to cross over into rewriting the Constitution. That profound privilege and right belongs to the People, not to us. This line, of course, has nothing to do with physics, it has to do with our assigned constitutional role in our republican form of government as enshrined in our oath of office. It is a line sometimes fuzzy and one about which reasonable judges might disagree, but as Edmund Burke once said, “Though no man can draw a stroke between the confines of day and night, yet light and darkness are upon the whole tolerably distinguishable.”

The jurisprudential significance of this case has far more to do with our role and power as federal judges than with the merits or desirability of physician-assisted suicide. The issue most deserving of attention is whether we have exceeded our lawful interpretative power to remind the democratic process what it can and cannot do.

II

Passive euthanasia, or letting death run its course, is one thing, and suicide another, but active euthanasia, or permitting one person to kill another — even at that person’s competent request — seems massively different. This difference is lost in Judge Reinhardt’s approach to this case as reflected in the questionable manner in which he states the issue: whether “there is a constitutionally-protected liberty interest in determining the time and manner of one’s own death,” or whether there is a “right to die.” These alternative statements are at odds with the Supreme Court’s admonition that “‘[s]ubstantive due process’ analysis must begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 1069, 117 L.Ed.2d 261 (1992)).

The active involvement of a person other than the inchoate decedent cannot be excluded from the statement of the constitutional issue in this case. It is the very involvement of this second person as the agent of death— a state licensed physician no less — that adds a critical and irreducible dimension to the issue, a dimension that does not belong in the wings. To relegate this definitive aspect of the question to a subsidiary phase of the analysis strikes me as analytically unsound. After all, what are we really talking about? It is the alleged right to have another person end one’s own life. My colleague Judge Noonan is correct when he says that “this case is about the role of physicians in bringing about death.”

I note with great interest that this alleged right is derivatively asserted by persons other than the now deceased patients themselves, i.e., their doctors; and this observation fuels my belief that the broad level of generality or abstraction at which Judge Reinhardt casts the issue is inappropriate and misleading. In substance, he slips the rabbit into the hat so he can later produce it as though it was there all the time.

The “careful description of the asserted right” called for in Reno v. Flores has an important purpose. A certain specificity and accuracy of focus enables us correctly to apply the required analysis to the assertion, and it avoids turning the Constitution into a friendly mirror in which we simply see our own predilections, or just a blank check. Constitutional rights are usually expressed in grand terms, but the terms must not be so broad that they fail to give notice as to what they encompass, especially if no textual language suggests their existence.

Given Judge Reinhardt’s broad approach to the Constitution, I suppose he would complement his liberty interest right to die with an equally broad substantive right to live; and that a right to live surely encompasses a right to breath. Does this then become for example, the starting point in all environmental cases involving the trees that produce our atmosphere’s oxygen? Are we going to balance logging programs against a liberty interest in life? On the basis of a right to breath, what new rights do I have against threats to the ozone layer? Can I invoke a general right to move against traffic laws? A right to eat against the IRS’s attempt to collect taxes? If the substantive due process liberty interest in determining the method of our own death is so weighty, why cannot it be claimed by a motorcycle rider as a balancing interest against helmet laws? The silliness of these examples is not intended to trivialize the weighty issue of physician-assisted suicide, but to expose the error inherent in casting a legal issue too broadly.

Thus, I believe the majority of the three-judge panel was correct in its statement of the issue as whether there exists “a constitutional right to aid in killing oneself.” When looked at through this prism, the line between interpreting and rewriting is “tolerably distinguishable.” Killing someone has usually been regarded as murder, unless done in self-defense, et cetera. Yet all of a sudden, a kind of killing that has traditionally been outlawed — assisted suicide is prohibited in forty-five states plus the District of Columbia — becomes enveloped in a liberty interest protected by the Constitution as a right.

Ill

Justice White has issued on behalf of the Supreme Court a doctrinal warning we should heed, not just because he said it, but because he is correct:

The court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.

Bowers v. Hardwick, 478 U.S. 186, 194-95, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986).

As well written, as erudite, and as seductive as Judge Reinhardt’s opinion is on behalf of his school of constitutional interpretation, it conjures up an illusion with “no cognizable roots in the language or design of the Constitution.” As such, and with all respect to the panel, the opinion is a well-intentioned and well-meaning tour de force, but illegitimate nonetheless. What is deeply rooted and still prevailing in our traditions is a strong aversion, both moral and legal, against the taking of a life of another. From the earliest days of recorded history, one of our most enduring secular principles has enjoined the killing of a fellow human being. Our Constitution protects life, not death. If assisted euthanasia is to be a protected liberty interest, then let the People put it in the Constitution.

Decisions like this are frequently accompanied by a discussion of the “slippery slope” principle. This case suggests, however, that we are not just on a slippery slope, but in a state of constitutional free fall resulting from what Dean Erwin Griswold called “decisional leapfrogging”:

the first decision is distilled from the language of the Constitution, but the next expansion begins from the reasoning of the last decision, and so on down the line until we reach a point where the words of the Constitution are so far in the background that they are virtually ignored. In the end, we may be left with a rationale that comes to little more than, “Well, it really is a good idea. We want a free society where all of these things can be done and we want to keep the Government off the backs of the people.” There are governmental processes for bringing such results about, but it is hard to think that such adumbrations of the Constitution are an appropriate exercise of judicial power.

I repeat, again with all respect to the en banc court, their decision has rewritten the Constitution, not interpreted it. The supposedly least dangerous branch has usurped the right of the People in a sovereign state to make their own laws, including their right to draft their own Constitution and to decide upon which areas of life the majority shall not trespass. This en banc decision and the manner in which it treats the Constitution and the role of federal judges sounds a sour note in the careful orchestration of our harmonious institutions and our republican form of government. Shorn of its Corinthian decor, it is nothing less than an act of judicial imperialism of the very kind that threatened the independence of the Supreme Court in the 1930’s. When we face political questions in legal form, we must give legal answers, not political ones.

The decisions made by the legislative organs of our government are not always to our liking. In fact, some of us on occasion may think they are abhorrent. Some values possibly should be in our Constitution, but are not. But what sets us apart from other forms of government is our belief in process. We are a nation of laws, not of leaders. Whenever we override democratic choice as we have done here, we are just a naked power organ unless our warrant to do so manifests itself in the Constitution. The right to assisted euthanasia does not, not in the text of the original document or its interstices, not in the thinking or purpose of those who drafted the Fourteenth Amendment, and not in our traditions, customs,- or history. Not a word supporting the existence of this “right” can be found in the records of any of the recognized sources of constitutional illumination.

If this supposed liberty interest cannot be found in any of these sources or anywhere in our history or traditions, where else is there to look? Where does this amorphous approach to substantive due process rights end? The majority opinion reads like a celebration of “natural law.” Judge Reinhardt’s revealing use of the Harris poll and the Roper Report as a source of constitutional enlightenment strikes me as particularly inappropriate. The Constitution’s explicit provisions for amendment rely on government process, not on random sampling of public opinion. Polls are for the other branches of our government, not for the judiciary. Equally irrelevant is his observation that a retired Justice Powell said he probably made a mistake in Bowers v. Hardwick.

No matter where we stand on the range of our interpretive power, the supreme function of a judge is to recognize that there must be limits to our writ. Even those celebrated advocates of sociological jurisprudence who delivered us from the grip of the 19th century’s rigidly mechanical approach to the law recognized clear limits to their authority as jurists. Justice Oliver Wendell Holmes, for example, said, “I recognize without hesitation that judges do and must legislate, but they only do so interstitially; they are confined from molar to molecular motions.” Justice Benjamin Cardozo put it this way:

“[A judge] is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness____ He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.” ... “Judges have ... the power, though not the right to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.”

Even more appropriate for a controversial polycentrie issue involving the active taking by a state licensed medical doctor of the life of a gravely ill yet somehow competent person are the words of Justice William O. Douglas:

The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate “interstitially” to resolve ambiguities in laws. But the problem of taking all or some alien commuters engaged in farm work out of the Act is not “interstitial” or as Mr. Justice Holmes once put it “molecular.” It is a massive or “molar” action for which the judiciary is ill-equipped.

If the only limit on our authority is the grandiloquence of our rhetoric, then we live by fiat of the judiciary. Dean Griswold called this, “Justice as administered by Ha-run al Rashid sitting under a tree. As Cardozo said, ‘That might result in a benevolent despotism if the Judges were benevolent [people].’ ” As Francis Bacon said in 1625, “This office is jus dicere, not jus dare, to interpret law, and not to make law or to give law.” Francis Bacon, Of Judicature, in Essays Civil and Moral (58 Murphy’s ed. 1826) (1625). If the difference is not tolerably discernible, trouble may become our middle name. Is our independence at stake? Archibald Cox gave us his answer to this question in 1987, an answer that may partially explain the Senate’s aggressive approach to judicial confirmation hearings:

The style of constitutional interpretation and the traditional independence of the judiciary from political pressure and responsibility are interrelated. If the process of decision making is excessively politicized, there will be additional pressure to choose judges who will cast their votes on grounds of policy. Such choices, in turn, would make the style of decision making still more political, in both fact and public perception. The heightened perception would fuel still further demand. The cycle would inevitably lead to demands for the election of justices and judges. If the key court decisions are little different from the determinations of policy by other branches of government, why should not the voters elect the justices and judges for terms of years?

As Judge Learned Hand said,

[The judge’s] authority and immunity depend upon the assumption that he speaks with the mouth of others: The momentum of his utterance must be greater than any which his personal regulation and character can command, if it is to stand against the passionate resentments arising out of the interests he must frustrate.

As did the framers, I prefer Justice Jackson’s liberty of law to the protection of a benevolent dictator or a monarch, or of an unbridled federal judiciary where sooner or later power corrupts, and ... you know the rest. I have the greatest admiration for my friend Judge Reinhardt and for the en banc court majority, able and dedicated jurists all, but on this issue, I respectfully disagree with their approach and their judgment. We have an obligation to undo this mistake, not to expect the Supreme Court to clean up our excesses.

Thus, I respectfully dissent from our decision not to rehear this landmark case sitting as a full court en banc.

      . In November 1991, the people of Washington rejected Initiative 119, which would have permitted physicians to assist terminally ill patients in committing suicide.

      . At the time of the filing of this order there are five vacancies on this 28-judge court. See 28 U.S.C. § 44. However, one judge took senior status after the voting began, but prior to this filing, reducing the current membership to 23.

      . See Arthur D. Heilman, Maintaining Consistency in the Law of the Large Circuit, in Restructuring Justice 62-70 (Arthur D. Heilman ed., 1990).

      . Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. 28 U.S.C. §§ 41, 44.

      . Louisiana, Mississippi, and Texas. 28 U.S.C. §§ 41, 44.

      . At the time of the Penn decision, there were 10 active members of this court and three vacancies. One of the active judges did not participate in the case.

      . Interestingly enough, the language of the limited en banc option statute is capable of such interpretation. See 28 U.S.C. §§ 41 note, 46(c). On balance, however, the context of our rule and the orders which implement it support the conclusion that our court never intended to renounce full court en banc in favor of a single limited en banc rehearing. See Ninth Cir. General Order 5; Ninth Cir.R. 35-3.

      . Measure 16 (codified as Or.Rev.Stat. §§ 127.800-127.995).

      . See, e.g., Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992) ("The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in [the area of substantive due process].").

      . Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

      . See, e.g., Daniel Q. Haney, Nurses Admit They Hasten Deaths, Wash.Post, May 23, 1996, at A13 (reporting that survey published in The New England Journal of Medicine reveals that one in five intensive-care nurses responding to survey admitted hastening deaths of terminally ill patients, sometimes acting contrary to physician's orders but out of compassion for the patient at the urging of the patient or family members).

      . See, e.g., Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 426 n. 11 (1977) (distinguishing an act of intentional self-destruction from "a competent, rational decision to refuse treatment when death is inevitable"); People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714, 728 (1994) ("whereas suicide involves an affirmative act to end a life, the refusal or cessation of life-sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention”), cert. denied, - U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995); McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617, 626 (1990) (concluding that there is a difference "between choosing a natural death summoned by an uninvited illness or calamity and deliberately seeking to terminate one's life by resorting to death-inducing measures unrelated to the natural process of dying”); Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, 665 ("We would see ... a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support ... in the face of irreversible, painful and certain imminent death.”), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297, 306 (1986) ("[A] decision to allow nature to take its course is not equivalent to an election to commit suicide with real parties aiding and abetting therein.”); see also New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 71 (May 1994) ("The imposition of life-sustaining medical treatment against a patient's will requires a direct invasion of bodily integrity and, in some cases, the use of physical restraints, both of which are flatly inconsistent with society’s basic conception of personal dignity.... It is this right against intrusion — not a general right to control the timing and manner of death — that forms the basis of the constitutional right to refuse life-sustaining treatment. Restrictions on suicide, by contrast, entail no such intrusions, but simply prevent individuals from intervening in the natural process of dying.”).

      . See Compassion, 79 F.3d at 808 & n. 25.

      . Although the 8-judge opinion contains numerous citations to this study, the opinion is careful to omit any mention of the study’s conclusion.

      . R. Traynor, "Reasoning in a Circle of Law,” 56 Va.L.Rev. 739, 750-51 (1970).

      . Erwin N. Griswold, “The Judicial Process." 31 Fed.B.J. 309, 317 (1972).

      . Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting).

      . Benjamin N. Cardozo, "The Nature of the Judicial Process,” 129, 141 (1921).

      . Saxbe v. Bustos, 419 U.S. 65, 79-80, 95 S.Ct. 272, 281-82, 42 L.Ed.2d 231 (1974).

      . Erwin N. Griswold, "The Judicial Process.” 31 Fed.B.J. 309 (1972).

      . Archibald Cox, "The Court and the Constitution” (1987).

      . L. Hand, Mr. Justice Cardozo, 52 Harv.L.Rev. 361 (1939).

      . I am indebted to our colleague Ruggero J. Aldisert and to his new book "The Judicial Process" (Second Edition) as a source of education and inspiration.


author: HENRY, Circuit Judge.

text:
    Marc A. BELL, Plaintiff-Appellant, v. DILLARD DEPARTMENT STORES, INC. Defendant-Appellee.
    No. 94-6351.
    United States Court of Appeals, Tenth Circuit.
    June 4, 1996.

      R. Allen Smith (J.W. Coyle, III, Gloyd L. McCoy of counsel, and Robert D. Baron, with him on the briefs), Coyle & McCoy, Oklahoma City, Oklahoma, for Appellant.
    G. David Ross (Nathan L. Whatley with him on the briefs), Lytle, Soule & Curlee, Oklahoma City, Oklahoma, for Appellee.
    Before HENRY and McKAY, Circuit Judges, and JENKINS , Senior District Judge.

      . Honorable Brace S. Jenkins, Senior District Judge for the District Court for the District of Utah, sitting by designation.

   HENRY, Circuit Judge.

This appeal concerns the effect of rulings in a prior, somewhat unusually conducted municipal court case on a diversity action for damages. The district court concluded that the municipal court’s determination that there was probable cause for the arrest of the plaintiff-appellant Marc Bell precluded Mr. Bell from re-litigating his claims for assault, battery, false arrest, and malicious prosecution. The court therefore granted summary judgment in favor of the defendant Dillard Department Stores, Inc. (“Dillard”).

For two reasons, we conclude that Dillard is not entitled to summary judgment: (1) because the record does not contain a document that satisfies the requirements of Oklahoma law for orders and judgments that may be given preclusive effect; and (2) because the record does not establish that Mr. Bell had a full and fair opportunity to litigate the issue in municipal court. Accordingly, we vacate the district court’s grant of summary judgment in favor of Dillard and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

In March 1993, a security guard arrested Mr. Bell in a restroom at Dillard’s store in Crossroads Mall in Oklahoma City. The guard alleged that by certain gestures Mr. Bell had offered to engage in a lewd act, and Mr. Bell was charged in Oklahoma City Municipal Court with violating a municipal ordinance. Mr. Bell’s attorney filed several pretrial motions, including a motion to quash the arrest and a motion to suppress certain statements made by Mr. Bell. See Aplt’s App. at 173. In his motion to quash, Mr. Bell argued that the security guard lacked probable cause to arrest him. See id.

On November 10, 1993, a municipal judge heard evidence pertaining to Mr. Bell’s motions to quash and suppress. The judge took the motions under advisement and informed the parties that he would issue a ruling in several days. What happened next is somewhat unclear from the record. However, a Renewed Motion to Quash and Motion to Suppress, filed by Mr. Bell’s attorney on November 15, 1998, reports the following conversation with the municipal judge:

3. That on Friday, November 12, 1993, counsel, in a telephone conversation (with the permission of the prosecutor ... ) heard from [the municipal judge] that he was overruling the Motions, but he was not specific about whether it included both of them, and further felt uncomfortable with the case and wanted to recuse himself because of his ownership of certain shares of stock in Dillards Department Stores. That [the municipal judge] further indicated that he even felt somewhat uncomfortable "with ruling on the Motions.
4. That counsel, based upon the discomfort of the prior Judge with sitting in the case ..., is entitled to renew his Motion to Quash and Motion to Suppress.

Id. at 175-76.

According to a handwritten minute entry, a second municipal judge denied Mr. Bell’s motion to quash and motion to suppress on November 15, 1993. Id. at 31. On the same day, the second municipal judge empaneled a jury, heard opening arguments for Mr. Bell and the City of Oklahoma City, and considered testimony from the first witness, the security guard who had arrested Mr. Bell. Id. at 27-28. The judge, upon hearing this testimony, immediately dismissed the case:

I’m going to dismiss this ease on the Demurrer or the Motion to Dismiss of the Defense Attorney for the fact that the case is not proved. A prima facie case which would stand alone has not been proved by this witness and this is the only witness that can present such evidence.

Id. at 73.

Following the dismissal of the municipal charge, Mr. Bell filed the instant diversity action against Dillard asserting claims for assault, battery, false arrest, false imprisonment, and malicious prosecution. In its motion for summary judgment, Dillard argued that the denial of Mr. Bell’s motions to quash by both municipal judges constituted a finding that his arrest was supported by probable cause. Dillard maintained that because Mr. Bell had had a full and fair opportunity to litigate the probable cause issue in municipal court, he was precluded from asserting any of his claims.

The district court agreed with this reasoning, concluding that “probable cause was fully and fairly litigated in the prior municipal court proceeding and cannot be relitigated in this action.” Id. at 239. Because a lack of probable cause for Mr. Bell’s arrest was an essential component of each of his claims, the court reasoned, Dillard was entitled to summary judgment on all of them.

II. DISCUSSION

Mr. Bell now argues that the district court erred in granting summary judgment to Dillard because he did not have a full and fair opportunity to litigate the issue of probable cause in the municipal court. We review the grant of summary judgment de novo, applying the same standards as did the district court under Fed.R.Civ.P. 56(c). Franklin v. Thompson, 981 F.2d 1168, 1169 (10th Cir.1992). The movant has the burden of establishing that it is entitled to summary judgment, and we examine the record in the light most favorable to the nonmoving party. Id. at 1169-70; Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Additionally, the legal question of whether issue preclusion bars the relitigation of the issue of probable cause in a subsequent action is reviewed de novo. Franklin, 981 F.2d at 1170.

Pursuant to 28 U.S.C. § 1738, a federal court must give the same full faith and credit to state judicial proceedings “as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738; see also Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889-90, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980); Ruyle v. Continental Oil Co., 44 F.3d 837, 843 (10th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995); Thournir v. Meyer, 803 F.2d 1093, 1094 (10th Cir.1986). “Under the doctrine of issue preclusion (or collateral estoppel), once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate the issue in a suit brought upon a different claim.” Fent v. Oklahoma Natural Gas Co., 898 P.2d 126, 133 (Okla.1994) (footnotes omitted); see also Wilson v. Kane, 852 P.2d 717, 722 (Okla.1993); Veiser v. Armstrong, 688 P.2d 796, 800 n. 9 (Okla.1984). However, the doctrine of issue preclusion bars an attack on a judgment only when the issue’ in question has been “ ‘fully and fairly’ litigated” in the prior proceeding. Veiser, 688 P.2d at 800; see also Carris v. John R. Thomas & Assocs., P.C., 896 P.2d 522, 529 n. 17 (Okla.1995) (“Issue preclusion cannot apply when the party against whom the earlier decision is interposed did not have a full and fair opportunity to litigate the critical issue in the earlier case.”).

In the instant case, there are two reasons why the doctrine of issue preclusion is inapplicable. First, the minute entry on which Dillard relies is not signed by the municipal judge, and under Oklahoma law it therefore may not be afforded preclusive effect. Second, because the first municipal judge recused and because the record does not establish that the second municipal judge reviewed the transcript of the motions hearing conducted by the first judge, we cannot conclude that Mr. Bell had a full and fair opportunity to litigate the probable cause issue in municipal court. Additionally, there is some question under recent case law (which echoes policy concerns advanced by courts and scholars) whether issue preclusion may be applied to litigants such as Mr. Bell who, because they ultimately prevail at trial, do not have an opportunity to appeal adverse rulings on pretrial motions. .

A. A minute entry not signed by the municipal judge is not entitled to preclusive effect.

In Depuy v. Hoeme, 775 P.2d 1339 (Okla.1989), the Oklahoma Supreme Court concluded that a ruling pronounced by a judge at a hearing, transcribed by a court reporter, and memorialized in a “bench docket entry” could not be afforded preclusive effect because the ruling was not set forth in an order signed by the judge. Id. at 1342-44. The Depuy court explained the kind of evidence necessary to determine the effect of a judgment or order:

A judgment or order is rendered and begins its legal life as soon as it is pronounced from the bench and before it is ever reduced to writing for entry of record by the clerk. While any judgment or order is operative from the moment it is announced, the only legitimate evidence of the adjudication’s legal existence, of its terms and of its legal effect is the record entry bearing the judge’s signature.

Id. at 1343 (footnotes omitted); see also Elliott v. City of Guthrie, 725 P.2d 861, 863 n. 10 (Okla.1986) (“A minute entry unsigned by the judge is not a legally sufficient memorial of the trial court’s ruling.”).

In the instant case, the record does not contain an order or a judgment that is signed by either of the municipal judges and that addresses the issue that Dillard now seeks to preclude Mr. Bell from litigating — whether the security guard had probable cause to arrest him. As we have noted, the record before us does contain two documents that memorialize the municipal court’s rulings on Mr. Bell’s pretrial motions to quash and suppress: (1) Mr. Bell’s Renewed Motion to Quash and Suppress (in which Mr. Bell’s attorney reports his discussion with the first municipal judge); and (2) a handwritten minute entry (not signed by either municipal judge), dated November 15, 1993. However, neither document satisfies the requirements set forth in Depuy for orders and judgments that may be given preclusive effect under Oklahoma law. Cf. Elliott, 725 P.2d at 863 (concluding that an unsigned minute order is not a sufficient memorial of a trial court’s ruling); Wetsel v. Independent Sch. Dist. I—1, 670 P.2d 986, 993 (Okla.1983) (“Neither minute entries nor statements by counsel, whether in briefs or in a transcript, can be invoked as a legally sufficient memorial of the court’s ruling.”). Therefore, the district court erred in giving preclusive effect to the municipal court’s rulings on the basis of the minute entries and statements by counsel contained in this record.

B. The first judge recused and the second judge heard no evidence before ruling on Mr. Bell’s pretrial motions.

In addition to the lack of an order or judgment signed by a municipal judge, there is a second reason why the doctrine of issue preclusion may not be applied in this case: the record does not establish that Mr. Bell had a full and fair opportunity to litigate the probable cause issue in municipal court. As we have noted, it appears that both municipal judges ruled on the motions in which Mr. Bell raised the probable cause issue. However, the record indicates that the first judge recused from the case because he owned stock in Dillard and that the judge reported to Mr. Bell’s attorney that he “felt somewhat uncomfortable with ruling on the Motions.” Aplt’s App. at 175. As Dillard’s counsel correctly acknowledged at oral argument, it was “anomalous” for the first judge to rule on a disputed (and potentially dispositive) factual issue and then, immediately after announcing his ruling, to recuse from the case on the basis of his relationship with one of the parties. Under these circumstances, we cannot conclude that Mr. Bell had a full and fair opportunity to litigate the probable cause issue before the first municipal judge.

As to the second municipal judge, the record does not support the inference that he heard any evidence regarding Mr. Bell’s pretrial motions. As noted above, the only doeument reporting the second judge’s denial of Mr. Bell’s pretrial motions to quash and suppress is the minute entry dated November 15, 1993, which does not state that any evidence was taken before the judge ruled. Moreover, the transcript of the November 10, 1993 hearing before the first municipal judge (at which Mr. Bell did present evidence in support of his contention that he was arrested without probable cause) was certified by the court reporter on December 6, 1993, approximately three weeks after the second municipal judge’s ruling on the pretrial motions. See Aplt’s App. at 174. Thus, there is no evidence in the record before us indicating that the second municipal judge reviewed the testimony presented at the November 10,1993 hearing.

In light of the disputed factual contentions pertaining to Mr. Bell’s arrest and our examination of the record provided to us, both at oral argument and subsequently, we cannot agree with the district court that the second municipal judge afforded Mr. Bell a full and fair opportunity to litigate the probable cause question before ruling on Mr. Bell’s pretrial motions. See Keating v. Carey, 706 F.2d 377, 383 (2d Cir.1983) (“[T]he determination of a factual issue, on an interlocutoiy appeal based on naught but the pleadings would have deprived [the plaintiff] of a full and fair opportunity to litigate his claim....”). Significantly, it appears that the first time that the second municipal judge heard the evidence offered to support the charge against Mr. Bell (ie., the trial testimony of the security guard), he took the case away from the jury and dismissed the charge himself. Accordingly, for this reason as well, the district court erred in holding that the municipal court’s finding of probable cause was entitled to preclusive effect.

C. Mr. Bell did not have an opportunity to appeal the pretrial ruling.

Finally, even if the second municipal judge had reviewed the transcript of the prior hearing or conducted a second hearing regarding the probable cause issue, an occurrence that has not been proved and seems highly unlikely, there is still some question as to whether Mr. Bell would have had a full and fair opportunity to litigate. In particular, we note that in light of the second judge’s dismissal of the charge against Mr. Bell after the security guard’s trial testimony, Mr. Bell had no opportunity to appeal the pretrial probable cause finding. Had he attempted to appeal the finding prior to trial, the appeal would be subject to dismissal as interlocutory. See Hardin v. State, 649 P.2d 799, 804 (Okla.Crim.App.1982) (“A ruling binding appellant over for trial is not a final order of judgment. It is an intermediate order made in the progress of the case and cannot be appealed from, except by review after pronouncement of judgment and sentence.”); see also Okla Stat. tit. 22 § 1051(a) (establishing defendant’s right of appeal “from any judgment against him”). After the dismissal of the charges at trial, an appeal of the probable cause determination would be subject to dismissal as moot. See State v. Thomason, 345 P.2d 908, 911 (Okla.Crim.App.1959) (noting that the dismissal of criminal charges rendered moot a prior ruling on a change of venue motion).

In analogous circumstances, this circuit has concluded that a Colorado court’s denial of a pretrial motion to suppress did not preclude litigation in a subsequent civil rights action of the issue of probable cause to arrest. See Dixon v. Richer, 922 F.2d 1456, 1459 (10th Cir.1991). Speaking for the court, Judge Anderson reasoned that the plaintiffs in the civil rights action had not had a full and fair opportunity to litigate the probable cause issue because their acquittal in the prior criminal case deprived them of the opportunity to appeal. See id. (“Before a final judgment, such an interlocutory appeal would have been improper, and after the judgment [of acquittal], an appeal was rendered moot.”). A number of courts have followed similar reasoning, holding that the lack of opportunity to appeal an issue establishes that there has not been a full and fair opportunity to litigate it and that, as a result, issue preclusion should not be applied. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1458 (2d Cir.1995) (“Under New York law, a party has not had a full and fair opportunity to litigate an issue if it has had no opportunity to appeal the adverse finding.”); Gray v. Lacke, 885 F.2d 399, 406 (7th Cir.1989) (“As our court has recognized on prior occasions, a ‘full and fair opportunity to litigate’ includes the right to appeal an adverse decision.”), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990); Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th Cir.1989) (noting that “unless [a judgment] is appealable the defendant was denied an opportunity to contest it fully in the previous litigation”); Block v. United States Int’l Trade Comm’n, 777 F.2d 1568, 1572 (Fed.Cir.1985) (concluding that an order is not preclusive when “there has been no opportunity for appellate review”); Luben Indus., Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983) (“[W]e are convinced that the Government did not have a ‘full and fair opportunity to litigate’ its claim because it could not appeal the interlocutory memorandum....”); Williams v. Weber, 905 F.Supp. 1502, 1509 (D.Kan.1995) (“Before the jury’s final judgment, any appeal of the state judge’s ruling on the motion to suppress or on the motion to acquit would have been unripe; after final judgment was entered, any appeal on the issue of probable cause was rendered moot. Thus, plaintiff did not have a full and fair opportunity to litigate the probable cause issue, and collateral estoppel should not be applied.”); Henry v. Ryan, 775 F.Supp. 247, 252 (N.D.Ill.1991) (“In similar situations where a defendant’s opportunity for appellate review has been foreclosed, Illinois courts have excepted the litigant from general collateral estoppel rules and allowed the matter to be relitigated.”). But see Coo gan v. City of Wixom, 820 F.2d 170, 175 (6th Cir.1987) (concluding that pretrial probable cause finding was entitled to preclusive effect even though the defendant in the criminal ease was subsequently acquitted); Guenther v. Holmgreen, 738 F.2d 879, 888-89 (7th Cir.1984) (same), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). See generally 18 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 4421, at 201 (1981) (“Since appellate review is an integral part of the system, there is strong reason to insist that preclusion should be denied to findings that could not be tested by the appellate procedure ordinarily available.”)

In a decision applying federal common law, the United States Supreme Court has likewise indicated its concern about giving preclusive effect to nonappealable rulings. In Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), the Court held that the acquittal of a principal did not preclude the prosecution of another individual for aiding and abetting in the same offense. The Court emphasized the government’s lack of opportunity to appeal the principal’s acquittal: “[I]n civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar aveiiue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect.” Id. at 23, 100 S.Ct. at 2007.

Nevertheless, as Dillard and the district court have correctly noted, a decision of this court and a decision of the Oklahoma Court of Appeals suggest that the availability of an appeal to the losing party is not always required in order to apply the doctrine of issue preclusion. In Hubbert v. City of Moore, 923 F.2d 769 (10th Cir.1991), this circuit applied Oklahoma law to conclude that the plaintiffs in a civil rights action were precluded from litigating the issue of probable cause for their arrest because the judge in a prior criminal case had determined the issue at a preliminary hearing. Id. at 773. Significantly, the plaintiffs in Hubbert were in the same position as Mr. Bell and as the plaintiffs in Dixon: because they were not convicted of the criminal charges, they had no opportunity to appeal the finding of probable cause.

Hubbert’s application of issue preclusion is based on Adamson v. Dayton Hudson Corp., 774 P.2d 478 (Okla.Ct.App.1989). See Hubbert, 923 F.2d at 773 (applying Adamson). In that case, just as in Hubbert, the court held that a finding of probable cause at a preliminary hearing precluded the plaintiff from re-litigating the issue in a subsequent civil rights action — even though the plaintiff was eventually acquitted in the criminal case and therefore did not have the opportunity to appeal. Adamson, 774 P.2d at 480. The Adamson court concluded that the plaintiff “had every opportunity to litigate this issue,” id., but it did not discuss the plaintiffs lack of an opportunity to appeal.

Hubbert and Adamson are distinguishable from the case at hand. Hubbert notes the requirement implicit in all preclusion claims: “[T]he question of probable cause is conclusively determined at a preliminary hearing when the parties have had a full and fair opportunity to litigate that issue.” Hubbert, 923 F.2d at 773. As we have stated above, the lack of properly memorialized orders, the recusal of the first judge, and the lack of evidence that the second judge reviewed the relevant transcript before ruling on Mr. Bell’s pretrial motion to quash make it impossible to determine that a “full and fair opportunity to litigate” was available.

Further, it is not clear whether the Oklahoma Supreme Court would now adopt the approach suggested by Dixon and other cases (concluding that availability of an appeal is a necessary component of a full and fair opportunity to litigate) or of Hubbert and Adamson (concluding that one may have had a full and fair opportunity to litigate even if one could not pursue an appeal). However, some statements in the Oklahoma cases suggest that issue preclusion may not be applicable in the absence of an opportunity to appeal. For example, in Lee v. Knight, 771 P.2d 1003 (Okla.1989), a decision cited in Hubbert and Adamson, the court held that a criminal conviction should be afforded preclusive effect. Id. at 1006. In explaining that holding, the court noted that “where the criminal sanctions are appropriately severe, ... the criminal defendant has every incentive to defend the prosecution vigorously and to exercise the right of appeal from a conviction." Id. (emphasis added). Moreover, in Benham v. Plotner, 795 P.2d 510 (Okla.1990), a case decided after Adamson and not discussed in Hubbert, the Oklahoma Supreme Court held that a felony conviction could not be given preclusive effect in a subsequent civil case when an appeal of the conviction was pending. Id. at 512-13. The court reasoned that the doctrine of issue preclusion could only be applied to final judgments and that, in light of the pending appeal, there was no final judgment:

A judgment is not final in the sense that it binds the parties until the losing party has failed properly to perfect an appeal, or until the highest court, whose jurisdiction in invoked by either party, upholds the decision of the trial court. Because a case does not become final until the appeal or the right to appeal is exhausted, and because [the defendant’s] criminal conviction was on appeal at the time of the civil trial, [the defendant’s] conviction was not a final judgment. Therefore, it could not be introduced as conclusive proof [that the defendant committed the offenses of which he was convicted].

Id. at 512 (footnotes omitted).

The reasoning of Benham, provides some support for the view that the right to appeal is a required component of the full and fair opportunity to litigate under the Oklahoma law of issue preclusion. As the United States Supreme Court observed in Standefer, the doctrine of issue preclusion “is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct.” Standefer, 447 U.S. at 23 n. 18, 100 S.Ct. at 2007 n. 18. If, as Benham suggests, the courts lack confidence in the correctness of a ruling when an appeal is pending, it is not clear why they should be any more confident when, as in this case, the lower court’s ruling cannot be appealed by the losing party.

In any event, because the municipal court’s ruling is not entitled to preclusive effect for the other reasons we have outlined above, we need not resolve this matter here. Whether, under the Oklahoma law of issue preclusion, a party has had a full and fair opportunity to litigate an issue if he cannot appeal the ruling of the court that initially decides it is a question that awaits definitive resolution by the Oklahoma Supreme Court.

III. CONCLUSION

In the absence of an order or judgment signed by a municipal judge, the municipal court’s rulings regarding probable cause to arrest Mr. Bell are not entitled to preclusive effect. Additionally, in light of the first municipal judge’s recusal and the absence of any indication that the second municipal judge heard any evidence pertaining to probable cause before ruling on Mr. Bell’s pretrial motion, we cannot conclude that Mr. Bell had a full and fair opportunity to litigate the issue. Accordingly, the municipal court’s rulings do not preclude Mr. Bell from litigating the issue of probable cause for his arrest in the instant case.

The district court’s order granting summary judgment to Dillard is therefore VACATED, and the case is REMANDED for proceedings consistent with this opinion.

      . In its appellate brief, Dillard states that the testimony from the November 10, 1993 hearing was "readily available” for the second municipal judge to review in considering Mr. Bell's renewed motion to quash. Aplee’s Br. at 11. As authority for this statement, Dillard cites the second paragraph of Mr. Bell’s renewed motion, which states that "testimony [at the November 10, 1993 hearing before the first municipal judge] was received by five witnesses and a transcript prepared of the testimony of those witnesses.” Aplt’s App. at 175.
      For several reasons, this statement does not establish that the second municipal judge actually reviewed the November 10th hearing transcript before ruling on the pretrial motion. First, there are no references to the transcript anywhere else in Mr. Bell’s renewed motion to quash and suppress. In addition, at oral argument, Dillard's counsel conceded — as credibility and candor demanded — that there was no evidence in the record indicating that the second municipal judge reviewed the transcript before ruling on the pretrial motions. (Rather than repeating the contention that the second judge reviewed the transcript, Dillard's counsel relied on the "presumption of regularity” in arguing that the minute entry recording the denial of the pretrial motions should be given preclusive effect.) Moreover, on appeal, Mr. Bell’s counsel agrees with Dillard that ”[t]he ruling on the motions by [the second judge] was made without hearing evidence on the issues.” Aplt’s Br. at 11. Finally, because the only transcript of the November 10th hearing that is contained in our record was certified by the court reporter on December 6, 1993, we cannot conclude that the second judge reviewed a previously completed transcript that we have not seen, and have no reason to believe existed.

      . The Court in Standefer added that it did not mean "to suggest that the availability of appellate review is always an essential predicate of estoppel.” Standefer, 447 U.S. at 23 n. 18, 100 S.Ct. at 2007 n. 18. However, "[i]n the absence of appellate review, or of similar procedures, such confidence [in the result of the prior litigation] is often unwarranted." Id. (emphasis added).

      . Under Oklahoma law, “No opinion of the Court of Appeals shall be binding or cited as precedent unless it shall have been approved by the majority of the Justices of the Supreme Court for publication in the official reporter .” Okla. Stat. tit. 20 § 30.5; see also Taylor v. Chubb Group of Ins. Cos., 874 P.2d 806, 809 n. 5 (Okla.1994). Adamson was approved for publication by the Oklahoma Court of Appeals, but there is no indication that it has been approved by a majority of the Justices of the Oklahoma Supreme Court. Accordingly, Adamson does not constitute binding precedent under Oklahoma law.

      . The Benham court also held that the felony conviction could be introduced " 'for what it is worth."' Benham, 795 P.2d at 513. "If the defendant is unable to offer a satisfactory explanation, it is presumed that the jury will give the conviction substantial weight and effect.” Id.

      . We also note that Okla. Stat. tit. 22 § 1343 allows merchants and their agents to detain a customer if there is "reasonable grounds or probable cause” to believe that the customer has wrongfully taken merchandise from the store. Subsection 1343(d) states that such a "reasonable detention shall not constitute an unlawful arrest or detention for purposes of civil liability." Okla. Stat. tit. 22 § 1343(d). This statute offers an additional defense to merchants in false arrest cases.

      . In his appellate brief, Mr. Bell also argues that, even if the municipal court’s finding of probable cause is preclusive, he may still pursue his claim for false imprisonment. He maintains that probable cause to arrest is not a complete defense to a false imprisonment claim. In light of our conclusion that the municipal court's rulings are not entitled to preclusive effect, we do not address this argument.