What tomorrow’s 9th Circuit deadline means for the Prop 8 case

February 20, 2012

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs

Tomorrow, February 21, marks a big deadline in the Prop 8 case that those of us who have been counting the days since the 9th Circuit’s decision have been eagerly anticipating: the last day that the proponents of Prop 8 can file a petition for rehearing with the 9th Circuit. The proponents have 14 days from the initial decision to do so, meaning that if they do not request an en banc review of the February 7 decision with a larger panel of the appeals court, the 3-judge panel’s ruling will be the last word at this level of appeal.

At this point, there’s no reason to speculate whether or not the proponents will actually file for a rehearing tomorrow, as they may be waiting until the last moment to do so. One question that is probably on many minds though is what happens to the stay depending on the proponents’ actions tomorrow.

In its ruling on February 7, the 9th Circuit wrote that the mandate (that is, the official notice of the decision) will not go into effect until 7 days after the deadline for a rehearing petition expires, or 7 days after a rehearing is denied. What that means is that the 9th Circuit’s stay on Judge Walker’s ruling striking down Proposition 8 will be lifted 7 days after tomorrow’s deadline (February 28), should the proponents choose not to file for rehearing. If the proponents do file for a rehearing, the stay is automatically extended until that rehearing is either denied or it is accepted and then ruled on, both of which could take some time.

Even if the proponents do not file for a rehearing tomorrow, however, it’s important to note that it is only the 3-judge panel’s initial stay that will expire on the 28th. Regardless of what they do tomorrow, the proponents have a full 90 days following the decision to seek Supreme Court review. Should they choose not to petition for rehearing, the proponents could still request an extension of the stay from the 9th Circuit pending Supreme Court review. Should that request be denied, they could petition the Supreme Court. Justice Kennedy, who is responsible for petitions from the 9th Circuit, could then either grant a stay on his own or refer it to the full court.

Tomorrow is certainly an important day no matter how the proponents of Prop 8 decide to act, because it gives us insight into their strategy moving forward. Nonetheless, it is too soon to say when marriages could resume in California.

Marriage equality bill to move quickly through... ACLU report shows continued lack of enthusiasm...

1491458 Comments2012-02-20+23%3A30%3A41Jacob+Combs Leave a Comment

1. thark | February 20, 2012 at 3:45 pm

The current stay on marriages by all legal accounst so far…are STILL considered illegal, post Flop 8.

That fact will certainly be lost on no one who cares about upholding the constitution…
2. peterplumber | February 20, 2012 at 4:05 pm

I think they are going for the En Banc. I think their hand was tipped to us last week when Chuck Storey and Imperial County submitted a request for an En Banc hearing.
They are also asking for an deadline extension of 7 days so tomorrow may not be the deadline at all.

Pursuant to General Order 6.3a of this Court, Proposed-Intervenor respectfully requests that the Clerk grant an extension of time of seven (7) calendar days, to February 28, 2012, in which to file a Petition for Panel Rehearing and for Rehearing En Banc in the above-captioned matter. This extension is necessary because of pressing deadlines in other litigation matters.
3. Lester | February 20, 2012 at 4:14 pm

The strategy of the proponents has been transparent from Day 1 and they have made no secret of it. They consider the District Court and the 9th Circuit as mere preface they were bound to lose. The Supreme Court has always been their goal. Regardless of whether they take a detour to en banc review, marriages will not resume unless and until the Supreme Court decided not to review or makes a final ruling on the case. So don't hold your breaths. It is likely to be years before we know.
4. Kathleen | February 20, 2012 at 4:48 pm

Chuck Storey didn't request an en banc hearing; he merely asked for an extension of the deadline to ask for one. While that request strongly suggests that Storey will ask for a rehearing, it doesn't mean he necessarily will. And that request was only for Chuck Storey, not for the Prop 8 Proponents. The Proponents have not requested a deadline extension.
5. bythesea | February 20, 2012 at 5:21 pm

That may be their strategy or not, but I don't think they anticipated the narrow scope of the ruling. I think it is actually quite likely that the SCOTUS will deny cert. If their goal is simply to delay the inevitable as long as possible it would make sense to ask for an en banc hearing.
6. Brian | February 20, 2012 at 5:24 pm

It is my understanding that Chuck Storey from Imperial County was DENIED his request to intervene in this case by both the lower court AND the appeals court. So why would the appeals court even consider ANY motion from his office. He is not even a party to this litigation. He is calling himself a "proposed intervenor" which really means NOTHING. If the court keeps with it prior rulings, it will deny his request or it will most likely not even rule on it at all. Additionally, since the deadline is tomorrow, the court would have released an opinion (if it were going to) about the request to extend the deadline for filing an appeal by the end of business today.
7. Mark :-) | February 20, 2012 at 5:41 pm

Not to disagree, but today is not a business day.
8. Kathleen | February 20, 2012 at 5:48 pm

Chuck Storey didn't try to intervene in lower court; he wasn't the County Clerk at the time. It was the County of Imperial and the Deputy County Clerk who originally tried to intervene and were denied by Walker and then (on January 4, 2011), by the 9th Circuit. At the time the County originally tried to intervene, the then-County Clerk declined to be part of the motion.

Then Chuck Storey was elected in late 2010 and took office January 11, 2011, after the 9th Circuit had already rejected Imperial County's attempt to intervene. In February, 2011, he filed a motion to intervene; that motion had been lingering with no action by the 9th Circuit until earlier this month, when the panel denied it as "untimely."

As to "the court would have released an opinion (if it were going to) about the request to extend the deadline for filing an appeal by the end of business today." The Court is closed today.
9. Reformed | February 20, 2012 at 6:17 pm

This extension is necessary because of pressing deadlines in other litigation matters?

Sorry Chuck, this extension isn't necessary by any means, and since when did protecting marriage take a back seat to all of your other more pressing (evidently) litigation matters? What, do you expect the court to hold out a special accomodation for bigots to make sure they get their briefs up in time?
10. Ann S. | February 20, 2012 at 6:26 pm

@
11. Str8Grandmother | February 20, 2012 at 7:06 pm

Anybody want to place bets if the defendants will go FOR en Banc or go directly to the Supreme Court?
12. Peterplumber | February 20, 2012 at 7:08 pm

Looks like I effed up again. Oh well, guess I am just a big eff up. I guess I should just stop coming here so I never eff up again.
Someone remind me to cancell my automatic monthly donation to this site.
13. John | February 20, 2012 at 7:40 pm

I think they will go En Banc because they want to drag this on and on as long as possible.
14. Lora | February 20, 2012 at 8:00 pm

Peter…No one is saying that you a big eff up…this is a complicated issue going through the courts, which is complicated in itself. I don't understand it all, so I for one, appreciate anyone who's doing their best to explain the complexities, you included.
Kathleen has been right on top of all the ins and outs , I don't think she was putting you down, just clarifying things. I appreciate you both.
15. Brett | February 20, 2012 at 8:06 pm

Bigots not getting their briefs up in time? Makes 'em sounds like closeted senators in airport bathrooms.
16. grod | February 20, 2012 at 8:13 pm

Peter, as long as you have contributed to this site, I count on reading your views. On legal matters, some of this stuff is nuanced and hard for any of us to keep straight. When I post a comment that is not exactly right, I know in my doing so, others will grasp my intention and set the stuff right. But, I have contributed to the dialogue by flagging the issue. You can count on me to give your comment a ‘thumbs up’ as often as you post. Well, not this time, because you are a valued contributor and you have not ..effed up. And you statement about stop coming here does not resonate well with me a daily reader, and sometimes contributor. As an irregular donor, but treasurer of a registered charity, I admire those sufficiently motivated to be a monthly donors. Read the next blog to see why I agree with you … G
17. Bob | February 20, 2012 at 8:13 pm

to Peter ditto what Lora said,,,,,, you're having a bad day bud,,,, chill,,,, and don't bang on yourself like that,,,,, I was thinking the same as you,,,, so thanks for posting that because it gave Kathleen the opportunity to clarify,,,,,,, sending hugs
18. grod | February 20, 2012 at 8:17 pm

So Peter, you got it almost right. Like you, I think the main Defense (Cooper and al) are going to ask for an en banc hearing. My reasoning mirrors your that because Imperial Country asked for seven additional days to weight the merits of asking or to really see what Cooper does tomorrow, they know something about what Cooper intends to do that you and I don't . Should Cooper request an en banc hearing, Chuck Storey will also ask the larger bench to review whether Imperial Country ought to be have received standing. So you and I are on the same page, tomorrow may not be the final deadline at all. The larger court might like to reconsider the whole issue of standing, not just the merit, and grant the seven day extension so as to encourage Imperial , Therby ensuring that consideration of merit is open to them. Not being a lawyer, I suspect my logic will not stand the light of scrutiny. But it was fun speculating And Peterplumber, reconsider, I for one would miss you alot.
19. Straight Dave | February 20, 2012 at 8:45 pm

That would only make sense if they expected to lose at SCOTUS, and delay was their only fallback option. If they really expected to win, then it would be in their interests to go to SCOTUS ASAP before the public mood and state laws changed any more. Further delay does not help them in the long run, unless Obama loses and the court shifts further right — which is looking less likely by the day.
20. Susan Russell | February 20, 2012 at 8:45 pm

Thanks … again … for keeping us all up to date on all the ins and outs!
21. Alan | February 20, 2012 at 9:10 pm

Also, requests for a mere one-week extension to the rehearing petition deadline are considered such a trivial matter that no judge ever sees them. The clerk of court is instructed to rule on them on her own, and I believe she pretty much just grants them all as a matter of course, as long as there is no technical error in them. (This only applies to the first extension.) See General Order 6.3(a).

I think people here should try to relax and accept that there's a good chance that the only thing that happens tomorrow is that the proponents request and receive another week in which to mull over their decision.
22. Lester | February 20, 2012 at 10:14 pm

Agreed Dave. They are counting on the 4 conservative Justices to grant cert and Kennedy not to want to get too ahead of history. That process will take over a year as it is. It s not in their interest to delay.
23. Patrick Terrill | February 20, 2012 at 11:03 pm

FYI, the YES ON 8 Crowd ask for a ten day extension last week, nothing is happening tomorrow.
24. John | February 20, 2012 at 11:26 pm

FYI we court hasn't denied or granted their extension.
25. Stefan | February 21, 2012 at 12:09 am

The 9th Circut ruling all but assures that it will apply just to California anyway.
26. _BK_ | February 21, 2012 at 2:02 am

I highly doubt this is actually peterplumber, guys… Sounds more like a troll, especially considering he didn't log in to post this.
27. Rick | February 21, 2012 at 5:45 am

Granting a 7-day extension should require extraordinary circumstances (a death in the immediate family, a natural disaster, etc.), otherwise the extension should only be granted if the stay is lifted.
28. Lymis | February 21, 2012 at 5:56 am

Seriously. Over a year since this appeal started and they haven't drafted the next appeal? Leave a few blanks to pencil in specifics from the ruling itself, but it shouldn't take more than minutes to tidy it up for submission – hell, they had time for drafting a wide variety of possible submissions. Surely it occurred to them they might lose. They should have had it ready to be submitted the day of the ruling.

Or is this really about getting another week of billable hours?
29. Morning pride 2/21 | The &hellip | February 21, 2012 at 6:04 am

[...] - Today is the last day proponents of Proposition 8 can appeal for an en banc review by the Ninth Circuit Court of Appeals. [...]
30. AnonyGrl | February 21, 2012 at 6:07 am

Standard practice seems to be to wait till the last minute before submitting things. I am not sure why that is, but it is the way they always seem to do it.
31. dwpiper | February 21, 2012 at 6:27 am

I must have missed the email notification of activity on the case for that request for a ten day extension somehow. Can you (or anyone) tell me what date that request was made?
32. Gay Marriage Watch »&hellip | February 21, 2012 at 6:43 am

[...] Full Story from the Prop 8 Trial Tracker [...]
33. Kathleen | February 21, 2012 at 7:46 am

I checked with Patrick – he's referring to Chuck Storey's 7 day extension request. Again, simply confusion over who all the players are… very easy to have happen in this crazy case! Btw, there are now 16 different cases that have been generated from this litigation since it was first filed in federal court.
34. Dave | February 21, 2012 at 8:01 am

Don't forget to cancel (or cancell?) your automatic monthly donation to this site you big eff up (sic).
35. Sam | February 21, 2012 at 8:16 am

Breaking–proponents to ask for rehearing, reporting by SCOTUSblog
http://www.scotusblog.com/2012/02/prop-8-rehearin…
36. James A. Tuttle | February 21, 2012 at 8:21 am

I hate these people so much.
37. Sammy | February 21, 2012 at 8:28 am

They are dragging this out as slow as possible because they know they are going to lose, if they thought they would win they would just go to SCOTUS and stop wasting time but they want to keep collecting donations and filling thier retirement accounts as long as possible… they really are the worst kind of people…
38. Sheryl_Carver | February 21, 2012 at 8:37 am

Yes, they are behaving very, very badly, Sammy.

I believe Karma will catch up with them, sooner or later, but meanwhile they are causing a lot of harm for many, many good people. If they have any kind of active consciences, they must have trouble sleeping at night & looking at themselves in the mirror. Am guessing that they've learned to lie to themselves, though, & rationalize what they're doing. "If we didn't do this, someone else would, so we might as well be the ones getting paid." Yup, terrific set of morals there. Same rationalization that many drug dealers use.
39. Jim t. | February 21, 2012 at 8:41 am

Does the 9th circuit have a time limit to vote among themselves and then render a decision as to whether they will accept an en banc rehearing?
40. Rick | February 21, 2012 at 8:46 am

It's interesting that they will appeal en banc to the 9th Circuit Court, knowing that it is the most liberal Circuit Court in the nation. If they lose, or their request is denied, they will blame it on the liberal court! So why not go directly to SCOTUS where their odds (at least for now) are more in their favor? There's only one reason: to delay the inevitable. That darned stay should be lifted!
41. Thom | February 21, 2012 at 8:48 am

AnonyGirl – I think they wait until the last minute becaue the longer they draw out this process, the longer the stay remains in place denying marriage equality. They are just delaying the inevitable, but in the meantime, they can be content with the fact that marriages aren't happening. Just a thought.
42. Jamie | February 21, 2012 at 8:48 am

I think you forget that Justice Roberts wasn't interested in taking up the challenge to the Washington D.C. marriage law. He even ruled against their request for a stay solo without bringing it to the rest of the justices. I doubt he is interested in this one either.
43. lesbians love boies | February 21, 2012 at 8:57 am

I don't think there is a time limit. En banc is somewhat complicated and so many factors goes into whether or not they will rehear the case.
44. Sagesse | February 21, 2012 at 9:00 am

Remember that the 9th Circuit can decline to rehear the case. This is ProtectMariage's Hail Mary pass. If they get en banc review, they will have kept the Prop 8 decision in limbo for another year before it even goes to the Supreme Court.
45. Brian | February 21, 2012 at 9:01 am

Jacob —

Just one point of clarification. The Ninth Circuit didn't rule that the mandate wouldn't issue until 7 days after the deadline for filing a request for en banc consideration, or 7 days after such a request was denied. Those deadlines are set by the Ninth Circuit's local appellate rules. So as a matter of law, the mandate would issue, at the earliest, today. What the Ninth Circuit said was that the stay would remain in effect until the mandate issued.
46. lesbians love boies | February 21, 2012 at 9:29 am

This is a good read for those of us who are not lawyers or law clerks about the process of en banc…
http://tinyurl.com/7nmeatj
47. milking cow | February 21, 2012 at 9:39 am

They're going to play prop 8 like a violin and milk their supporters for as long as they can.
48. Mark Mead-Brewer | February 21, 2012 at 9:49 am

I agree. I doubt Peter would be so childish as to throw his monthly donation in our faces like this……sounds a bit childish to me. "I'm gonna take my ball and leave the playground"
49. Mackenzie | February 21, 2012 at 9:56 am

I think all but maybe two or three of the SOCTUS are probaly actually opposed to Marriage Equality. These people are well educated and well versed in law. I would say more than anything else public opinion (even at near 50%) is more of a hinderence on them. By the time this gets to the supreme court, if the 9th En Banc takes it up, many more states will have marriage equality. They know they are screwed either way. Go ahead and let another handful of judges affirm our position before it ends up with the SCOTUS. It sucks that Cali has to wait longer though :/
50. Lymis | February 21, 2012 at 10:01 am

I wasn't reacting to "the last minute" but rather to the request for an extension.
51. rocketeer500 | February 21, 2012 at 10:01 am

Hey folks…. it looks like Cooper and Co. are going to file for En Banc.
http://www.metroweekly.com/poliglot/2012/02/propo…
52. lesbians love boies | February 21, 2012 at 10:16 am

It's time for our side to request lifting the stay…
53. Prop 8 Trial Tracker &raq&hellip | February 21, 2012 at 10:18 am

[...] we wrote here on P8TT yesterday, the proponents’ decision to seek en banc review at the 9th Circuit means the stay on Judge [...]
54. chiefscribe | February 21, 2012 at 10:41 am

Very helpful. Thanks.
55. Mark Mead-Brewer | February 21, 2012 at 11:13 am

I get negative feedback for saying I doubted the post was actually from Peter????Whatever…………….
56. Frustrated | February 21, 2012 at 5:51 pm

Justice delayed = Justice denied… the US court system should be ashamed of themselves.
57. grod | February 21, 2012 at 9:28 pm

Peter, I back: "I think they are going for the En Banc" . You guessed right. We were all speculating. Hope to hear from you. G
58. Peterplumber | February 22, 2012 at 5:25 am

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