Amicus Curiae Brief — Washington v. Glucksberg

J iUN FILED

“EC 2 4 1996 ,

No. 96-110

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1996

\& /

STATE OF WASHINGTON and CHRISTINE O. GREGOIRE,

ATTORNEY GENERAL OF THE STATE OF WASHINGTON,

Petitioners,

Vv.

HAROLD GLUCKSBERG, M.D., ABIGAIL HALPERIN, M.D.,

THOMAS A. PRESTON, M.D., and

PETER SHALIT, M.D., PH.D.

Respondents.

On A Writ of Certiorari To The

United States Court of Appeals

For The Ninth Circuit

BRIEF FOR JOHN DOE AS

AMICUS CURIAE SUPPORTING RESPONDENT

LAWRENCE SILVER

MarRK E. FIELD

LAWRENCE SILVER & ASSOCIATES

111 West Ocean Boulevard

Suite 1900

Long Beach, CA 90802-4649

(310) 901-4500

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

99 PP

i

TABLE OF CONTENTS

CONSENT OF PARTIES

INTEREST OF JOHN DOE

STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT

I BACKGROUND OF THE ISSUE

Il. THE AUTHORITY CITED BY SALERNO

ESTABLISHES ONLY A _ REQUIRE-

MENT OF STANDING, NOT A TEST

FOR ADJUDICATING FACIAL CHAL-

LENGES

THIS COURT’S CONSISTENT PRAC-

TICE CONTRADICTS SALERNO, STAT-

UTES WHICH REACH A SUBSTANTIAL

AMOUNT OF PROTECTED CONDUCT

MAY BE VOIDED IN THEIR ENTIRETY

IF SEVERANCE OF THE OFFENDING

PORTION IS NOT POSSIBLE

A. Challenges By Individual Plaintiffs Are

B. No Limiting Construction Is Available. . .

C. Declaring A Judicially Created “Exceptions

Clause” To The Statute Conflicts With

Recognized Principles Of Severance And

Intrudes On The Power Of The Legislature 16, 17

CASEY'S “UNDUE BURDEN” TEST SETS

THE CORRECT STANDARD OF PROOF 19, 20

CONCLUSION

f

TABLE OF AUTHORITIES

Federal Cases Cited

Ada v. Guam Society of Obstetricians and

Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121

L028 566 CIGTE) 2. oc cccctusesceneccuuanee

Alexander v. U.S., 509 U.S. 544, 113 S.Ct. 2766

(i) Perret

Allen v. Louisiana, 103 U.S. 80, 26 L.Ed 318 (1881)

Aptheker v. Secretary of State, 378 U.S. 500, 844

SCe 1659 CIGSE) .. cccccccccesccceuepeuauas

Arkansas Writer's Project, Inc. v. Ragland, 481 U.S.

221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)....

Barnes v. Moore, 970 F.2d 12 (Sth Cir. 1992) ....

Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031

C1DGR). oc ccccosssccecscauenwsbecenaeeam

Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562,

104 L.BG26 SED CISGE) oo csncesccceseuuunses

oag73) v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908

Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46

L.G238 G50 CEPTS) ovccvvinsccsuuavanuneeat

Butts v. Merchants & Miners ———

Company, 230 U.S. 126, 33 S.Ct. 964 (1913) .

Casey v. Planned Parenthood, 14 F.3d 848 (3rd Cir.

IGD6)......s00ceseecesesuedennens aun 6,

ciy of of Houston, Texas v. Hill, 482 U.S. 451, 107

Ct. 2502, 96 L.Ed.2d 398 (1987) ...........

Compassion in Dying v. Washington, 79 F.3d 790

(Fas Cle. 1GOGD occ vcccvcececéenseonuunnee

Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323

CRGDS). . cecccccccsecssceccsouehauesneaenee

Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614, 118 BCR. BOTT CEGGE) oc cccccsctscsevess

Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573,

96 L.BE2S SIO CIDGT) . wcccvsscscsedvesesces

14

14

16, 19

15

6,8

14, 15

10

TABLE OF AUTHORITIES

CASES

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029

SSCS SEEN GUOEbeneeccceccesececoeees

F Women's Health Organization v. Schafer, 18

“F3d $26 (8th Cir, Dt iebbb coscesdé< =

Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed.

DER ERGS SG UeGeeecceccccceoccccces<

eM | Spain

Illinois Cent. R.R. v. McKendree, 203 U.S. 514, 27

SE

Janklow v. Planned Parenthood, Sioux Falls Clinic,

US. , 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) ..

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855,

75 L.Ed.2d 903 (1983).............. 11, 12, 13,

Kraft General Foods v. lowa Dept. of Revenue, 501

> Fie BES Wee SHGO CIDTE) cc cccccccccces

Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618

EES SASL EEE

hee dalla nna aime

Oregon Waste Systems, Inc. v. Dept.

nvironmental lity, 511 U.S. 93, 114 S.Ct

1345, 128 L.Ed.2d 13 (1994) ................

Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d

CECE CCCSGS bee besedeveccecccce

Planned Parenthood, Sioux Falls Clinic v. Miller, 63

F.3d 1452 (8th Cir. 1995) ...................

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

ih ehes666.006660000606 0000000.

Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403

Ne ceguedeccsece

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868

Nn icuceccees

Page

10

6

16, 18

iv

TABLE OF AUTHORITIES

CASES

Page

Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85

SB 8 GHPEED. cccccccedectedesoscccccces 7,16

U.S. v. Ju Toy, 198 U.S. 253 (1905) ............ 17

U.S. v. Reese, 92 U.S. 214 (1876) .............. 9,10

United States v. Raines, 362 U.S. 17, 80 S.Ct. 519

EUs occbcdecdecscucseedesceccenwouse 9,10, 11,14

United States v. Salerno, 481 U.S. 739, 107 S.Ct.

Ff _, Pree rire 5, 6, 8,9, 10, 11, 12

Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789

| SPPPPPrrrrrrrr rr rrrirrrrriii ts 15, 16

Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct.

1522, 118 L.Ed.2d 153 (1992) ............... 13

Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673

TRPUE sé dcccdeccocecsecudeeueeebeeesboet 13, 16, 19

State Cases Cited

In Re Hendrickson, 12 Wash.2d 600, 123 P.2d 322

CURED, Es cocccdndocacedeckhouéececeedse 16

In Re Joseph G., 34 Cal.3d 429, 194 Cal.Rptr. 163

Pr Pe eee 2

Constitutions and Statutes Cited

California Penal Code Section 401 .............. 2

Fifteenth Amendment to the United States Consti-

Se. .. « céncotiesstadtedesaudecsunésenenn 9

Fourteenth Amendment to the United States Consti-

ay err Sa aes 2

Revised Code of Washington

DR <scdévedeuabenoeountes 2, 4, 8, 12, 15, 19, 20

No. 96-110

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1996

STATE OF WASHINGTON and CHRISTINE O. GREGOIRE,

ATTORNEY GENERAL OF THE STATE OF WASHINGTON,

Petitioners,

Vv.

HAROLD GLUCKSBERG, M.D., ABIGAIL HALPERIN, M.D.,

THOMAS A. PRESTON, M.D., and

Peter SHALIT, M.D., PH.D.

Respondents.

On A Writ of Certiorari To The

United States Court of Appeals

For The Ninth Circuit

BRIEF FOR JOHN DOE AS

AMICUS CURIAE SUPPORTING RESPONDENT

CONSENT OF PARTIES

All parties have consented to the filing of this Brief, and

the letters stating that consent are attached.

INTEREST OF JOHN DOE

On September 20, 1996, John Doe obtained a judgment

in the United States District Court for the Central District

of California, Case No. 94-6089 CBM(Kx) declaring that

2

California Penal Code Section 401 is unconstitutional on its

face because it violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

939 F.Supp. 725. That Section, like RCW 9A.36.060, pro-

hibits terminally ill individuals from obtaining assistance,

even by licensed physicians, in ending their lives painlessly

and with dignity.

The California Supreme Court interprets California Penal

Code Section 401 to prohibit “participation in the events

leading up to the commission of the final overt act, such as

furnishing the means for bringing about death — the gun,

the knife, the poison, or providing the water, for the use of

the person who himself commits the act of self murder.” Jn

Re Joseph G., 34 Cal.3d 429, 436, 194 Cal.Rptr. 163, 167

(1983). Under this interpretation, any physician who

“aided, advised, or encouraged” John Doe in terminating his

life would risk felony penalties in doing so; Penal Code

Section 401 thus serves as an absolute prohibition on John

Doe’s exercise of this component of his right to liberty

protected by the Fourteenth Amendment.

John Doe learned that he was HIV positive in 1984.

Diagnosed with AIDS in January 1993, he is now in the

advanced final stages of that disease and has been advised by

his physician that his condition is terminal. With his im-

mune system severely compromised (a CD4 count of 0), he

now suffers from three debilitating diseases, each incurable.

The first to appear was Cytomegalovirus (“CMV”) reti-

nitis, a condition in which the virus attacks the optic nerve.

Medication can slow the deterioration of his vision, but

cannot prevent him from eventually going blind. For over a

year he received that medication by injection directly into

his eye, but now undergoes an experimental implant treat-

ment. This virus causes death in a few weeks to months if it

invades th- orain or spinal cord.

Oe ee ee —

ii cacti es \ Me —

3

In March, 1995, tests revealed that John Doe suffers from

Mycobacterium Avium Complex (“MAC”), a bacterial

infection. This causes chronic night sweats, fever, chills,

malaise, nausea, and bone pain; it has been described as

“the worst flu you ever had, every day of your life.”

Also in March, 1995, a biopsy disclosed Kaposi’s Sar-

coma in the back of John Doe’s throat. Patients with KS

frequently die from invasion of this cancer into the lungs,

causing progressive difficulty in breathing and ultimately

death by suffocation.

Over the past year he has lost 35 Ibs., 25% of his body

weight. Neuropathy has confined him to bed 24 hours per

day for the last 16 weeks. The CMV has spread to his other

eye, and he suffers from pancreatitis and loss of kidney

function. The fever, chills, etc. of MAC have persisted for

the entire year. His daily medications, many of which cause

significant unpleasant side-effects (¢.g., nausea, diarrhea,

ae dee se ag hm ence), now include

an anti-vi or ); Pyrazinamide (for

MAC); Ethambutol (same); Biaxin (antibiotic); ces

(for MAC); Diflucan; Lamivudine (antiviral for AIDS);

Vasotec (anti-hypertensive); AZT (for AIDS); Megestrol

(appetite stimulant); Neupogen; Epogen (for white cell

count); steroid shots; Percocet (pain relief); Vicodin; Fos-

carnet infusions (for CMV); nausea medication; and a

morphine patch which he wears 24 hours a day.

AIDS patients typically die in a slow, prolonged, and

extremely painful process. By the time that health care

professionals agree that there is no hope for any meaningful

quality of life and deem patients “end stage”, patients are

often emaciated beyond belief, reminiscent of starving indi-

viduals in Ethiopia or the dead photographed concentration

camp victims from World War II. During this stage, pa-

tients usually lose control of all bodily functions, especially

urination and defecation, and are rendered helpless, often

4

bed-bound, lying in their own excrement. Because of the

multitude of opportunistic infections and AIDS-associated

tumors, all end-stage AIDS patients can suffer from intrac-

table pain.

John Doe has seen many of his peers end their lives in

pain and degradation from the ravages of AIDS. Rather

than suffer that fate, John Doe wants the ability to control

his own final days. Whether the State of California can deny

him that right, forcing him to prolong his suffering or

restricting him to inherently more dangerous, painful, risky

and often barbaric methods of suicide, will be controlled by

this Court’s ruling in these consolidated cases.

The opinion of the Ninth Circuit vindicates the rights of

the terminally ill, such as John Doe, far more forcefully and

eloquently than John Doe could in any Brief. John Doe is

also confident that the briefing which this Court will receive

on the merits from the parties and from other amici will be

as thorough and instructive as is humanly possible. Notwith-

standing his intense interest in the merits of this issue, John

Doe will limit this Brief to a preliminary legal issue, namely

the effect of challenging the constitutionality of a statute on

its face. This issue was briefed in detail by both John Doe

and the California Attorney General in Doe’s action, and

Doe believes that the authorities developed there would be

helpful to this Court.

STATEMENT

John Doe adopts the statement of Respondents.

SUMMARY OF ARGUMENT

In footnotes 8 and 9 of the opinion below (79 F.3d at 797

n. 8, 798 n. 9), the Ninth Circuit addressed the nature of the

challenge made to RCW 9A.36.060: whether that statute

was void “on its face” or only “as applied”. This issue arises

eS I elt a scent

5

in numerous cases raising Constitutional issues and recent

case authority has created a conflict in the Circuits.

Amicus John Doe submits that determining the type of

challenge proper requires answers to four questions:

(1) Who has standing to challenge the Constitutional-

ity of a statute?

(2) How much protected conduct must a statute reach

before a court may declare it void “on its face’?

(3) What burden of proof must a plaintiff meet in

order to obtain a declaration voiding a statute?

(4) What happens to a statute declared void?

While no one decision of this Court articulates the an-

swers to all four questions, this Court’s consistent practice

over many years defines the guidelines for facial challenges.

In general, these are that the plaintiff must be someone to

whom the statute could not constitutionally apply; that the

Statute must reach a “substantial amount” of protected

conduct; that the statute must create an undue burden on

the exercise of a Constitutional right; and that if the offend-

ing portion of the statute cannot be severed, the entire

statute should be declared void.

ARGUMENT

I.

BACKGROUND OF THE ISSUE

Any discussion of facial challenges to the constitutionality

of a statute must begin with this Court’s decision in United

States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987). In

the course of its opinion, this Court stated that “A facial

challenge to a legislative act is, of course, the most difficult

challenge to mount successfully, since the challenger must

6

establish that no set of circumstances exists under which the

act would be valid.” 481 U.S. at 745, 107 S.Ct. at 2100.

Three Circuits have expressed uncertainty regarding the

implications of this statement.' The Third, Eighth, and

Ninth Circuits concluded that this Court did not follow this

principle in Planned Parenthood v. Casey, 505 U.S. 833, 112

S.Ct. 2791 (1992) (“Casey”), and that facial challenges

may be brought under a wider range of circumstances. The

Fifth Circuit, in contrast, understood Salerno to control

facial challenges. Barnes v. Moore, 970 F.2d 12, 14 n. 2 (Sth

Cir. 1992). Several members of this Court have commented

on this issue in Janklow v. Planned Parenthood, Sioux Falls

Clinic, U.S. —__, 116 S.Ct. 1582, 134 L.Ed.2d 679

(1996); Fargo Women's Health Organization v. Schafer,

$07 U.S. 1013, 1014, 113 S.Ct. 1668, 1669, 123 L.Ed.2d 285

(1993); and Ada v. Guam Society of Obstetricians and

Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d

564 (1992).

Knowing when and how facial challenges may be brought

is of considerable importance. Constitutional challenges to

statutes are frequent, and both courts and parties deserve a

clearly defined framework for the types of challenges which

may be made.

This very case exemplifies some of the uncertainties which

may arise:

“Notwithstanding the District Court’s declaration that

the Washington statute is unconstitutional, the effect of

its ruling is unclear. It is extremely unlikely that the

‘Compassion in Dying v. Washington, 79 F.3d 790, 798 n. 9 (9th Cir.

1996); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452,

1456-8 (8th Cir. 1995); Fargo Women’s Health Organization v. Schafer,

18 F.3d 526 (8th Cir. 1994); Casey v. Planned Parenthood, \4 F.3d 848,

863 n. 21 (3rd Cir. 1994).

— ane

oo I ce a

7

district judge intended to strike down the entire statute, as

the state asserts she did, in view of the fact that the

appellants attacked only its ‘or aids’ provision. This is

particularly true because the ‘or aids’ provision is clearly

severable under Washington law. [Citation omitted. ]

It is equally unclear whether the District Judge in-

tended to strike the ‘or aids’ provision on its face or as

applied. [Citation omitted.] Again, we think it unlikely

that she intended to strike the entire provision for two

reasons. First, the plaintiffs only argued that the assisted-

suicide provision violated the constitutional rights of ter-

minally ill, competent adults, and only offered evidence to

that end. The parties did not address whether broader

relief was permitted or required, and the District Court

offered no explanation as to why a finding that the

provision was unconstitutional as applied to the terminally

ill would cause her to strike the provision on its face

rather than as applied to the injured group.

Declaring a statute unconstitutional as applied to mem-

bers of a group is atypical but not uncommon. See, e¢.g.,

Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694,

1701, 85 L.Ed.2d 1 (1985) (holding that state law per-

mitting police officers to use deadly force to prevent the

escape of felony suspects was unconstitutional as applied

to suspects who pose no immediate threat to officers or

others); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526,

32 L.Ed.2d 15 (1972) (holding Wisconsin’s mandatory

pec gerd ho unconstitutional but only as applied to

chi who have graduated from eight '

Although the Court did not explicitly use ro haga

applied’, it did explicitly affirm the judgment of the

Wisconsin Supreme Court, id. at 207, 92 S.Ct. at 1529,

which struck down the statute only as applied to Amish

children who had graduated from the eighth grade. Wis-

consin v. Yoder, 49 Wis.2d 430, 182 N.W.2d 539 (1971).

Because we are not deciding the facial validity of RCW

9A.36.060, there can be no question that the exacting test

for adjudicating claims of facial invalidity announced in

United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95

L.Ed.2d 697 (1987), is inapplicable here. (‘A facial

challenge to a legislative Act is, of course, the most

difficult challenged to mount successfully, since the chal-

lenger must establish that no set of circumstances exists

under which the Act wold be valid.’ Jd. at 745, 107 S.Ct.

at 2100). For that reason alone, we would reject Wash-

ington’s suggestion that we use the Salerno test for

adjudicating plaintiffs’ constitutional challenge.” Com-

passion in Dying, 79 F.3d at 797 n. 8 and 798 n. 9.

These passages from the opinion below, combined with a

review of earlier decisions by this Court, aid in identifying

the critical issues:

(a) What rules of standing apply to facial challenges,

i.e., may such a challenge may be brought by persons to

whom the statute could apply, or only by those to whom it

could not?

(b) How extensive must the potential unconstitutional

applications be in order to justify a facial challenge rather

than one “as applied”?

(c) What form should the relief take?

(d) What showing must be made in order to declare a

statute unconstitutional?

While this Court has never articulated answers to these

four questions in any one decision, express language in some

opinions and the natural consequence of its holdings in

numerous related cases provide those answers. John Doe

- a eee

Ate ee at

9

submits that those answers demonstrate this Court’s consis-

tent rejection of the dictum in Salerno.

Il.

THE AUTHORITY CITED BY SALERNO

ESTABLISHES ONLY A REQUIREMENT OF

STANDING, NOT A TEST FOR ADJUDICATING

FACIAL CHALLENGES

Salerno cited as authority the decision in Schall v. Mar-

tin, 467 U.S. 253, 269 n. 18, 104 S.Ct. 2403, 2412 n. 18

(1984). Schall contains no substantive discussion, but, in

turn, cited United States v. Raines, 362 U.S. 17, 21-23, 80

S.Ct. 519, 522-3 (1960), which is thus the ultimate source

authority for Salerno.

Raines was a criminal prosecution for interference with

the right to vote. The defendants challenged the statute as

beyond the power of Congress under the Fifteenth Amend-

ment. The District Court dismissed the complaint in reli-

ance on this Court’s decision in U.S. v. Reese, 92 U.S. 214

(1876).

The statute in Reese had punished ail interference with

the right to vote, even that not resulting from racial discrim-

ination. This Court held in Reese that Congressional power

to enforce voting rights under the Fifteenth Amendment

was limited to punishing discrimination on account of race.

Because the statute exceeded Congress’ power, it was un-

constitutional and should not be applied even to those whom

Congress could have punished under a narrower statute. 92

U.S. at 220-1.

Raines declined to follow Reese, holding that where the

application of the statute was clearly constitutional in the

particular case, the defendant could not complain that the

Statute might be applied unconstitutionally to others. 362

U.S. at 24-25, 80 S.Ct. at 524-5. This was a determination

10

of standing, not a rule affecting the merits of facial

challenges.

Raines’ concern with standing appears clearly from its

reliance on and citation to Barrows v. Jackson, 346 US.

249, 73 S.Ct. 1031 (1953), a classic standing case. 362 U.S.

at 21-2, 80 S.Ct. at 523. Also telling is the fact that Raines

did not overrule Reese or even disapprove it. Raines declined

to follow Reese not because Reese improperly applied the

rules controlling facial challenges, but because this Court

had developed rules of standing which made Reese

inapplicable.’

Raines supports Salerno only to the extent that a uniform

invalidity of the statute may be necessary to confer stand-

ing — application of a statute void in all applications per-

force confers standing on the person to whom it is applied.

But in Raines the statute manifestly was constitutional as to

the particular defendants; Raines does ‘not even address

facial challenges in the opposite context, L.¢., when, as here,

a party alleges that he or she is within the class whose

constitutional rights are violated. Such persons undoubtedly

have standing to sue; whether Salerno states the proper test

for the challenges they bring can only be derived, if at all,

from other cases.

. iberal principles of standing can apply in some circumstances.

Big en v. Leesville Concrete Co., Inc., 500 U.S. 614, 628-9, 111

S.Ct. 2077, 2087 (1991); Singleton v. Wulff, 428 U.S. 106, 96 os

2868 (1976); Eisenstadt v. Baird, 405 U.S. 438, 444-6, 92 S.Ct. Pa

1033-5 (1972); Barrows v. Jackson, supra; NAACP v. ee:

U.S. 449, 459-60, 78 S.Ct. 1163, 1170 (1958). And see Alexa Po

U.S., 509 U.S. 544, 555, 113 S.Ct. 2766, 2774 (1993) (noting that - ce

First Amendment overbreadth doctrine is an exception to the rule t at

those to whom a statute may apply lack standing to suc).

eet

1]

Il.

THIS COURT’S CONSISTENT PRACTICE

CONTRADICTS SALERNO; STATUTES WHICH

REACH A SUBSTANTIAL AMOUNT OF

PROTECTED CONDUCT MAY BE VOIDED IN

THEIR ENTIRETY IF SEVERANCE OF THE

OFFENDING PORTION IS NOT POSSIBLE

If Raines solves the standing issue, answers to the remain-

ing questions — the extent of the unconstitutional impact,

the showing necessary, and the relief which is appropriate —

can be found by reviewing this Court’s practice in deciding

Constitutional issues. The most direct route to Salerno

follows the path of the remedy appropriate in facial

challenges.

When presented with a facial challenge to a statute

brought by a party with Standing to sue, this Court has

several options available:

(a) It could declare the statute void.

(b) It could hold the statute void in the class of cases

represented by the plaintiffs.

(c) It could treat the case as an “as applied” challenge

and limit its ruling to the facts presented by the particular

plaintiff (s).

In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75

L.Ed.2d 903 (1983), this Court specifically affirmed its

power to declare statutes void in their entirety even if they

could constitutionally be applied to some:

“In his dissent, Justice WHITE claims that ‘[t]he

upshot of our cases . . . is that whether or not a statute

purports to regulate constitutionally protected conduct, it

should not be held unconstitutionally vague on its face

unless it is vague in all of its possible applications.‘ Post,

at 1865. The description of our holdings is inaccurate in

12

several respects. First, it neglects the fact that we permit a

facial me if a law reaches ‘a substantial amount of

constitutionally protected conduct.’ Second, where a stat-

ute imposes criminal penalties, the standard of certainty is

higher. This concern has, at times, led us to invalidate RY

criminal statute on its face even when it could conceivably

have had some valid application. The dissent concedes

that ‘the overbreadth doctrine permits facial challenge of

a law that reaches a substantial amount of conduct

protected by the First Amendment .. . .’ Post, at 1866.

However, in the dissent’s view, one may not ‘confuse

vagueness and overbreadth by attacking the enactment as

being vague as applied to conduct other than his own.

Post, at 1865. But we have traditionally viewed vagueness

and overbreadth as logically related and similar doc-

trines.” 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8,

citations omitted.’

Kolender directly contradicts Salerno. Under Kolender,

statutes which reach a substantial amount of protected

conduct — a class certainly including RCW 9A.36.060 --

may be declared void in their entirety. While this result

must be considered in its proper context (see below), it is

consistent with this Court’s actions in numerous similar

cases which, taken together, disclose the following circum-

stances under which statutes may be voided:

(1) Courts may strike down a statute as void for

vagueness if persons of common intelligence must guess

at its meaning, such that it fails to provide adequate

notice of what conduct is forbidden or required. Kolender

>To anticipate one possible rejoinder to this language, Salerno, supra,

Pry at 745, 107 S.Ct at 2100, Doe notes that Kolender was not

exclusively a First Amendment case, but also relied on the constitutional

right to freedom of movement. 461 U.S. at 358, 103 S.Ct. at 1859. The

examples cited below confirm that, in any event, this Court has never

limited overbreadth challenges to First Amendment cases.

13

v. Lawson, supra; Lanzetia v. New Jersey, 306 U.S. 451,

59 S.Ct. 618 (1939).

(2) Courts may strike down statutes as “overbroad”

when they have an inhibitory effect on free speech.

Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct.

2908, 2915-16 (1973). Similarly, courts may strike down

statutes as facially invalid if they violate the Establish-

ment Clause. Bowen v. Kendrick, 487 U.S. 589, 600-602,

108 S.Ct. 2562, 2569-71, 101 L.Ed.2d 520 (1988); Ed-

wards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96

L.Ed.2d 510 (1987).

(3) Courts may strike down statutes which sweep

unnecessarily broadly and thereby invade the area of

protected freedom. Griswold v. Connecticut, 381 U.S.

479, 485, 85 S.Ct. 1678, 1682 (1965); Roe v. Wade, 410

U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973);

Aptheker v. Secretary of State, 378 U.S. 500, 844 S.Ct.

1659 (1964).

(4) Courts may strike down statutes which have the

purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a non-viable fetus

— the undue burden test of Casey, supra. And see

Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673, 681

(1978) (similar standard applied to protect marital

relationship).

(5) Courts may strike down ordinances as regulatory

takings if the ordinance does not substantially advance a

legitimate state interest no matter how it is applied. Yee v.

City of Escondido, 503 U.S. 519, 533-4, 112 S.Ct. 1522,

1531-2, 118 L.Ed.2d 153 (1992).

(6) Courts may strike down statutes as underinclusive

on equal protection grounds even if those statutes would

properly apply to some persons. Orr v. Orr, 440 U.S. 268,

271-2, 99 S.Ct. 1102, 1107-8, 59 L.Ed.2d 306 (1979).

14

And see Kraft General Foods v. lowa Dept. of Revenue.

501 U.S. 71, 81-2, 112 S.Ct. 2365, 2371-2 (1992) (apply-

ing sienil an fn Radian ehehatten of Menten ©

merce Clause); Oregon Waste Systems, Inc. v. Dept. of

Environmental Quality, 511 U.S. 93, 114 S.Ct. 1345, 128

L.Ed.2d 13 (1994) (same under the Negative Commerce

Clause); Arkansas Writer's Project, Inc. v. Ragland, 481

U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (same

when discriminatory treatment affects First Amendment

rights).

(7) Courts may strike down statutes where the valid

provision is inextricably intertwined with the invalid

one(s). See Dorchy v. Kansas, 264 U.S. 286, 290, 44

S.Ct. 323, 325 (1924); Raines, supra.

(8) Courts may strike down criminal statutes where

the statute would require such a revision that it no longer

gave intelligible warning of the conduct prohibited.

Raines, supra, 362 U.S. at 22-3, 80 S.Ct. at 523.

(9) Courts may strike down statutes which are uncon-

stitutional in the vast majority of their intended applica-

tions, and it can fairly be said that the statute was not

intended to stand in only the remaining fraction of cases.

See Butts v. Merchants & Miners Transportation Com-

pany, 230 U.S. 126, 33 S.Ct. 964 (1913); Raines, supra.

(10) Courts may strike down an unconstitutional part

of a statute which is wholly independent of the constitu-

tional part. Allen v. Louisiana, 103 U.S. 80, 83-4, 26 L.Ed

318 (1881); Field v. Clark, 143 U.S. 649, 695-6, 12 S.Ct.

495, 505-6, 36 L.Ed. 294 (1892); Buckley v. Valeo, 424

US. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976).

Taken as a whole, these cases demonstrate that this Court

has followed a consistent practice of striking down in their

entirety statutes which reach a substantial amount of pro-

tected conduct, when the statutes are challenged by persons

15

to whom they cannot constitutionally apply, even if those

statutes might constitutionally apply to others. A review of

the alternatives will demonstrate why this Court has acted

so consistently in the examples cited above.

A. Challenges By Individual Plaintiffs Are Impractical.

The case before this Court is not one in which any ruling

could be limited to the particular plaintiffs only. The very

nature of the challenge identifies a large common class of

similarly situated persons whose circumstances will differ

only in detail from those of the plaintiffs here. Individuals

who are terminally ill and suffering have no effective oppor-

tunity to protect their constitutional nghts on a case by case

basis because their medical condition precludes any active

involvement in litigation. It would be exceedingly burden-

some for each terminally ill patient to be forced to sue in

order to exercise the fundamental right at issue here.

B. No Limiting Construction Is Available.

Taking the statute generally, one reason for voiding the

entire statute is the lack of any basis for a limiting construc-

tion. RCW 9A.36.060 is a single section, accomplishing all

of its results by the same general words. Like the ordinance

at issue in City of Houston, Texas v. Hill, 482 U.S. 451, 107

S.Ct. 2502, 96 L.Ed.2d 398 (1987), Washington’s law “is

not susceptible to a limiting construction because . . . its

language is plain and its meaning unambiguous. Its constitu-

tionality cannot ‘turn upon a choice between one of several

alternative meanings.’ [Citations omitted.] Nor can the

ordinance be limited by severing discrete unconstitutional

subsections from the rest.” Jd. at 468, 107 S.Ct. at 2513.‘

“Although the issue of severability is for this Court to decide,

Wyoming v. Oklahoma, 502 U.S. 437, 459, 112 S.Ct. 789, 803 (1992);

Dorchy v. Kansas, supra, 264 U.S. at 291, 44 S.Ct. at 325, it is worth

noting that Washington law treats the entire statute as inoperative when

16

C. Declaring A Judicially Created “Exceptions Clause”

To The Statute Conflicts With Recognized Principles

Of Severance And Intrudes On The Power Of The

Legislature.

In Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694,

1701, 85 L.Ed.2d 1 (1985), this Court applied the concept

of “severance” in a somewhat unusual way by grafting an

exceptions clause onto the statute. In so doing, it exempted

an entire class from the operation of the statute.

While this approach would grant respondents satisfactory

relief, and was the path taken by the Ninth Circuit (79 F.3d

at 798 n. 9), Doe submits that better practice would be to

declare the entire statute void as was done in, e.g., Kolender,

supra; Lanzetta, supra; Aptheker, supra; Casey, supra;

Zablocki, supra; Griswold, supra; Orr, supra; Kraft General

Foods, supra; and Oregon Waste Systems, Inc., supra. This

would accomplish two important results.

First, it would eliminate the possibility of any future

inhibition on the exercise of constitutional rights which

might exist because of the sweeping language of the statute.

This Court expressed precisely this concern in the First

Amendment overbreadth cases and in non-First Amend-

ment cases such as Kolender, Lanzetta, and Griswold, the

concern is clear but implied in Casey and Zablocki.

Of perhaps equal importance is that this Court has

frequently recognized that unitary provisions cannot be

severed. See, ¢.g., Wyoming v. Oklahoma, supra, 502 U.S.

at 460, 112 S.Ct. at 803 (rejecting severability because

“there are no parts or separate provisions in the invalid

[section] of the Act... . Nothing remains to be saved once

that provision is stricken. Accordingly, the Act must stand

the unconstitutional portion is inseparable from the rest. Jn Re Hen-

drickson, 12 Wash.2d 600, 123 P.2d 322, 326 (Wash. 1942).

17

or fall as a whole.”); U.S. v. Ju Toy, 198 U.S. 253, 262

(1905) (“[T]he relevant portion being a single section,

accomplishing all its results by the same general words,

must be valid as to all that it embraces, or altogether void.

An exception of a class constitutionally exempted cannot be

read into those general words merely for the purpose of

saving what remains.”); J/linois Cent. R.R. v. McKendree,

203 U.S. 514, 529-30, 27 S.Ct. 153, 158-9 (1906).

The reason for this is clear: voiding the entire statute gives

proper deference to the responsibility of the legislative

branch. Reese, supra, recognized this principle, and its

teaching on the effect of facial challenges, in contrast to its

views on standing, should still be considered sound:

“We are, therefore, directly called upon to decide

whether a penal statute enacted by Congress, . . . which is

in general language broad enough to cover wrongful acts

without as well as within the constitutional jurisdiction,

can be limited by judicial construction so as to make it

operate only on that which Congress may rightfully pro-

hibit and punish. For this purpose, we must take these

sections of the statute as they are. We are not able to

reject a part which is unconstitutional, and retain the

remainder, because it is not possible to separate that

which is unconstitutional, if there be any such, from that

which is not. The proposed effect is not to be attained by

striking out or disregarding words that are in the section,

but by inserting those that are not now there. Each of the

sections must stand as a whole, or fall altogether. The

language is plain. There is no room for construction,

unless it be as to the effect of the Constitution. The

question, then, to be determined, is, whether we can

introduce words of limitation into a penal statute so as to

make it specific, when, as expressed, it is general only.

It would certainly be dangerous if the legislature could

set a net large enough to catch all possible offenders, and

18

leave it to the courts to step inside and say who could be

rightfully detained, and who should be set at large. This

would, to some extent, substitute the judicial for the

legislative department of the government. The courts

enforce the legislative will when ascertained, if within the

constitutional grant of power. Within its legitimate

sphere, Congress is supreme, and beyond the control of

the courts; but if it steps outside of its constitutional

limitations, and attempts that which is beyond its reach,

the courts are authorized to, and when called upon in due

course of legal proceedings must, annul its encroachments

upon the reserved power of the States and the people.

To limit this statute in the manner now asked for would

be to make a new law, not to enforce an old one. This is

no part of our duty.” 92 U.S. at 221, emphasis added.

See also Kolender, supra, 461 U.S. at 358 n. 7, 103 S.Ct.

at 1858 n. 7 (quoting the emphasized language favorably).

This Court's role in the government makes it preferable to

void ‘he statute and allow the Legislature to redraft it.

Instead of an absolute prohibition, there would have to be a

legislative definition of who was ineligible to exercise the

right, the safeguards which might protect against its abuse,

and approved principles or methods of carrying out the right.

The Legislature deserves the opportunity to make these

decisions in the first instance.

If, on the other hand, the statute remains in effect subject

to piecemeal attack, the law is uncertain and the Legislature

loses control over the process of designing a statute in

accordance with democratic preferences. It also discourages

the legislative branches from exercising their responsibility

to evaluate the constitutionality of a statute before passage.

This Court’s respect for the process of legislation should

dictate a policy of voiding unitary statutes which punish

19

protected conduct, letting the Legislature design a new

statute in light of constitutional mandates.

IV.

CASEY’S “UNDUE BURDEN” TEST SETS

THE CORRECT STANDARD OF PROOF

RCW 9A.36.060 clearly imposes an undue burden on the

exercise of a fundamental privacy right. The same standard

applied in Casey — which is the same standard this Court

has applied in many cases — should apply here. Not only is

the analogy with Casey compelling, but the importance of

privacy as a component part of liberty, and the personal

nature of privacy rights, requires that government actions

not inhibit their exercise. In Zablocki, supra, this Court

recognized that States could impose reasonable regulations

which did not “significantly interfere” with the marital

relationship. 434 U.S. at 386, 98 S.Ct. at 681. In applying

this “undue burden” test without using that language, this

Court stated:

“Under the challenged statute, no Wisconsin resident

in the affected class may marry in Wisconsin or elsewhere

without a court order, and marriages contracted in viola-

tion of the statute are both void and punishable as

criminal offenses. Some of those in the affected class, like

appellee, will never be able to obtain the necessary court

order, because they either lack the financial means to

meet their support obligations or cannot prove that their

children will not become public charges. These persons

are absolutely prevented from getting married. Many

others, able in theory to satisfy the statute’s requirements,

will be sufficiently burdened by having to do so that they

will in effect be coerced into forgoing their right to marry.

And even those who can be persuaded to meet the

statute’s requirements suffer a serious intrusion into their

freedom of choice in an area in which we have held such

20

freedom to be fundamental.” 434 U.S. at 387, 98 S.Ct. at

681, footnote omitted.

V.

CONCLUSION

This case, like John Doe’s own case, does not require a

search of the language or history of the Constitution for the

phrase “physician aid in dying”. Rather, it requires this

Court to undertake its traditional role of breathing life and

meaning into the term “liberty” as used in the Constitution.

The process of construction by which this Court performs its

judicial role can and should implement the intent of the

American people to protect from government interference

the mght to make decisions central to human dignity and

self-worth.

Statutes prohibiting physician aid in dying intrude drasti-

cally into the space of private decision-making protected by

the guarantee of liberty. The effort to impose an absolute

prohibition requires a remedy appropriate to the scope of the

statute, and this Court should not hesitate to declare RCW

9A.36.060 .nvalid on its face.

DATED: December 09, 1996

Respectfully submitted,

By: LAWRENCE SILVER

LAWRENCE SILVER &

ASSOCIATES

111 West Ocean Boulevard

Suite 1900

Long Beach, CA 90802-4649

(310) 901-4500

Telecopier (310) 901-4520

[ATTORNEY GENERAL OF WASHINGTON SEAL]

Christine O. Gregoire

Attorney General of Washington

Transportation & Public Construction Division

PO Box 40113 * Olympia WA 98504-0113

(360) 753-6126

November 25, 1996

Mr. Mark E. Field

Lawrence Silver & Associates

111 West Ocean Boulevard Suite 1900

Long Beach, California 90802-4649

Re: Washington v. Glucksberg,

U.S. Supreme Court Cause No. 96-110

Dear Mr. Field:

This responds to your request for consent to file a brief as

amicus curiae in the above-referenced matter on behalf of

John Doe. Your request for consent is granted.

Very truly yours,

/s/ WILLIAM L. WILLIAMS

William L. Williams

Sr. Assistant Attorney General

WLW:am

cc: Kathryn L. Tucker

Perkins Coie

A Law Partnership Including Professional Corporations

1201 Third Avenue, 40th Floor * Seattle, Washington

98109-3099

Telephone: 206 583-8888 * Facsimile: 206 583-8500

Kathryn L. Tucker

(206) 583-8730

tuckk@PERKINSCOIE.COM

November 20, 1996

Mark E. Field

Lawrence Silver & Associates

111 W. Ocean Blvd., Suite 1900

Long Beach, CA 90802-4649

_ Re: Washington v. Glucksberg; Vacco v. Quill

Dear Mr. Field:

This responds to your request to file a brief as amicus

curiae in the above-referenced matters on behalf of John

Doe. We understand that you intend to support the position

of the Respondents. Your request for consent is granted.

Consistent with our position throughout this litigation, we do

not plan to share argument time with amici.

Please find enclosed a copy of the Court's order setting

forth the briefing schedule for your information.

Also, please note that the joint appendix in Washington v.

Glucksberg will be posted on the Attorney General's Office

home page (htip://www.wa.gov/ago) in a PDF format

when it has been completed. To download it, you will need a

program entitled Acrobat Reader, which can be downloaded

free of charge from the Adobe home page

(hhtp:// www.adobe.com). In the meantime, the Complaint

and significant briefing in support of Respondents in Wash-

ington v. Glucksberg is currently available on the Perkins

Coie home page (hhtp://www.perkinscoie.com). We hope

this medium will allow interested parties expeditious access

to these materials and at the same time avoid unnecessary

printing and mailing costs.

Thank you for your support of Respondents’ position. We

look forward to receiving a copy of your brief.

Very truly yours,

/s/ KATHRYN L. TUCKER

Kathryn L. Tucker

KLT:rak

Enclosure

ce: William L. Williams

Lucia M. Valente

Marc F. Scholl