February 21, 2012
By Jacob Combs
Updated to include the petition for rehearing.
Metro Weekly reports that Charles Cooper, lead attorney for the proponents of Prop 8, has informed them that his team will ask the full 9th Circuit Court of Appeals to review the 3-judge decision that earlier this month struck down the marriage ban as unconstitutional. Metro Weekly breaks down what happens next:
Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit — due to the more than 20 active judges on the circuit — has adopted a unique “limited en banc” procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given. That will be the request made by today’s filing.
If a majority of the court supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.
Cooper told the publication his team would make the official filing later this afternoon, before today’s deadline for rehearing.
As we wrote here on P8TT yesterday, the proponents’ decision to seek en banc review at the 9th Circuit means the stay on Judge Walker’s decision is extended indefinitely until the appeals court decides whether or not to review the panel decision.
When the 9th Circuit issued its ruling earlier this month, Chris Stoll of the National Center for Lesbian Rights shared with us what the process of rehearing might involve:
It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.
The proponents’ decision today means the road to a final decision on Prop 8 may have gotten a bit longer. Nonetheless, the plaintiffs’ attorneys have made it clear that they will seek to have the stay lifted, now that Prop 8 has been struck down by two separate courts. In the 9th Circuit’s own guidelines, the court says that an en banc rehearing should only be heard if 1) there is a need for “uniformity” in the court’s decision, 2) the matter is a “question of exceptional importance” or 3) the ruling “directly conflicts with an existing opinion by another court of appeals or the Supreme Court.” The proponents are likely to argue that the Prop 8 case is a matter of “exceptional importance,” but they may face an uphill battle convincing a majority of the 9th Circuit that the appeals panel’s decision needs to be reconsidered, especially given how narrow the ruling was.
In any case, P8TT will, as always, keep you up to date as we move forward to the next step. Our side has already won twice in court, and the other side’s weak arguments show little promise of becoming stronger with time.
UPDATE: Thanks to Kathleen in Quick Hits, we now have the various documents that were filed with the court today. There were three: Imperial County Clerk Chuck Storey’s request to intervene in the case, the proponents request to file a rehearing position longer than the court usually allows, and the actual petition for an en banc rehearing, which can also be read below.