August 15, 2010

More on Possible Stay Motion in Prop. 8 Case in the Supreme Court

I wanted to give a bit more detail here on my comments in Monday's New York Times on how the Supreme Court might treat a request for a stay of Judge Walker's Prop. 8 ruling. (I had earlier suggested that Judge Walker could have decided to lower the temperature in this case by granting a stay. He decided not to do so, denying the request for a stay pending appeal, and granting a temporary stay only until Aug. 18, to give the Ninth Circuit a chance to act.)
I made two points in my Times quotes, based upon my experience both litigating in the Ninth Circuit and observing how the Supreme Court has handled stay requests. First, though the standard for reviewing a trial court's decision on a stay is quite deferential, in ideological (or hot issue) cases, these appellate courts show a lot less deference. Second, even if the Supreme Court stays Judge Walker's decision (assuming the Ninth Circuit does not and the question gets to the Supreme Court), that does not necessarily mean the Court will reverse Judge Walker's opinion if and when the case ultimately gets to the Supreme Court.

On the first point, let me briefly review some high profile stay requests and similar emergency motions in recent years coming from the Ninth Circuit to the Supreme Court:

    Purcell v. Gonzalez (2006): Federal district court in Arizona refused to grant a preliminary injunction barring enforcement of a part of Arizona law imposing new voter identification requirements. Plaintiffs sought emergency relief from the Ninth Circuit, which granted a preliminary injunction without giving any explanation for the reversal. The state of Arizona filed a request to stay the Ninth Circuit's order with Justice Kennedy. In the judicial equivalent of a bolt of lightning, the Court treated the stay request as a petition for cert., granted the petition, and reversed the Ninth Circuit in a published opinion.

    Doe v. Reed (2010): Referendum proponents sought to keep secret the names of those who signed referendum to reverse Washington state's everything but marriage gay rights law. The district court granted a preliminary injunction barring the release of the names pending a full trial. The Ninth Circuit reversed, ordering the names to be released. The Supreme Court reversed the Ninth Circuit, barring the release of the names pending a hearing in the case on the merits.

    Perry v. Schwarzegger (2010): In the same Prop. 8 case, the trial judge ordered certain video feeds of the trial. Plaintiffs sought to block the video feeds, claiming witnesses would be intimidated. Plaintiffs appealed to the Ninth Circuit, which refused to block the video. The Supreme Court on a 5-4 vote reversed, imposing a stay on the release of the video.

    McComish v. Bennett (2010): Plaintiffs sought an order blocking the release of certain matching funds as part of Arizona's public financing system in the middle of the election season. The district court granted the order blocking the release of funds. The Ninth Circuit reversed, staying the district court injunction and thereby allowing the funds to be released. The Supreme Court reversed, blocking the release of funds pending a decision on whether or not to take the case. The Supreme Court was so hot to take this case that it gave the plaintiffs a second chance to file a stay request after a technical problem with their first petition.

On my second point--that a stay doesn't necessarily equal a win---consider the Doe v. Reed case described above. The Court issued a stay request which preserved the status quo. But then on an 8-1 vote the Court affirmed the Ninth Circuit---it did not reverse that court. (It did not lift the stay, however, because there is another issue pending in the case.) Staying Judge Walker's order preserves the status quo, and that's something that could have an appeal to Justice Kennedy regardless of where he might ultimately come out on the merits.
Bottom line: Yes, there are fascinating standing issues in this case, and yes, appellate courts generally review district court decisions on stays under a deferential "abuse of discretion" standard. But in a case of this magnitude, all bets are off.

Posted by Rick Hasen at August 15, 2010 10:27 PM