Rather than asking for a response from the state of California, Justice Kennedy (Circuit Justice for the 9th Circuit) has denied without prejudice CCP’s emergency application for a stay. The order is not yet online, but SCOTUSBlog reports that Justice Kennedy allowed for the order to be renewed “in light of further developments.”

The case involves a requirement that 501c3’s like the Center for Competitive Politics provide unredacted copies of their IRS 990 forms to the State of California.  The 990s list all of the Center’s donors—information which is not released publicly. California does not want these documents for public disclosure, but for California’s law enforcement purposes.

Why would Justice Kennedy proceed this way, rather than order a response from the A.G. and then rule on the merits, either alone or with the entire Court?

One possibility is because the 9th Circuit has already stayed the mandate in this case, although it declined to issue an injunction pending appeal.  (See Rule FRAP 41 and the Circuit comments.) With the mandate stayed, the State of California is unlikely to try to act until the Supreme Court rules on a cert. petition – – and if it does, as Lyle Denniston notes, Justice Kennedy has kept the door open to CCP.

According to the circuit comments to FRAP 41, the fact that the 9th Circuit stayed the mandate means that the court has determined CCP has a non-frivolous argument to be made to the Supreme Court.

[This post has been updated.]