[MsTinkerbelly]

Analysis of Judge Walker’s decision on the stay, and what’s next


by Brian Devine

Judge Walker decided to deny the motion to stay his decision overturning Prop 8. But at the same time he also issued a temporary stay until August 18th to allow the Ninth Circuit time to decide whether or not it wants to stay the case pending the appeal. This is not surprising, and it is done out of respect for the Ninth Circuit. Judge Walker is simply making the call that is his (that a stay should be denied) but giving the Ninth Circuit some breathing room to make the call on its own. If the Ninth Circuit does not issue a stay by August 18th, Judge Walker’s decision will take effect and marriages may resume in California. Until then, however, we remain in a holding pattern.

(Several news outlets are reporting only the first half of this story–the denial of the stay–and are saying that marriages may resume immediately. As Adam reported earlier this afternoon, that’s not that case.)


A quick recap for anyone tuning in to this show already in progress. Last Wednesday, August 4th, District Court Judge Vaughn Walker issued a decision declaring that Proposition 8 violates the Due Process Clause and the equal protection rights in the U.S. Constitution. Even before Judge Walker issued his decision, the proponents of Prop 8 filed a motion asking the Court to put a hold on–or to “stay”–its decision while the Prop 8 proponents try to appeal the decision to the Ninth Circuit Court of Appeals. Judge Walker decided that he would issue a temporary stay for just a few days until he ruled on the Motion to Stay. All of the actual parties to the case–the Plaintiffs who want to get married, the Attorney General, and the Governor–filed papers telling the Court they they did not want a stay; that they wanted marriages to resume immediately. The only one asking for the stay is the proponent of Prop 8, and it is not a party and it may not even have standing to pursue an appeal.

The Prop 8 supporters will be asking the Ninth Circuit to issue a stay. Now that Judge Walker has denied the stay, they may (and will) file the Motion to Stay with the Ninth Circuit immediately. Although the arguments and the applicable law are the same as Judge Walker addressed, the Ninth Circuit will make its own determination and it is not bound by Judge Walker’s decision.

A few words about the procedures we’ll see at the Ninth Circuit:

Once the Prop 8 Proponents file their Motion to Stay with the Ninth Circuit, opposition papers are due ten days later and a response to the opposition is due seven days after that. That being said, the Court has the power to shorten time for the opposition and the reply papers to be filed.
After the motion is fully briefed, the Court usually makes it decision based on the papers alone, without having a hearing. But the Court may schedule a hearing if it so desires. The Motion to Stay must be decided by a three-judge “Motions Panel,” but as I will discuss below, a single judge on the Motions Panel may decide to issue a temporary stay while the full panel makes its decision on the Motion.
For August, the Ninth Circuit Motions Panel is composed of Judge Edward Leavey (a Reagan Appointee from Oregon), Judge Michael Hawkins (a Clinton Appointee from Arizona), and Judge Sidney Thomas (a Clinton Appointee from Montana). For what it’s worth, Judge Thomas interviewed with President Obama and VP Biden to replace Justice Stevens on the Supreme Court and he was rumored to be on the “short list” for the appointment; he may still be on the list for future vacancies.
The Motions Panel decides only the Motion to Stay, not the merits of the appeal. The merits of the appeal will be decided by a panel of three judges who will be assigned shortly before the hearing (months away).
In addition to filing an ordinary Motion to Stay with the Ninth Circuit, the Prop 8 Proponents also will file an Emergency Motion requesting a temporary stay. To do this, they must show that “to avoid irreparable harm relief is needed in less than 21-days.”
When an Emergency Motion is filed, it is immediately referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it’s more likely that it will take a day or two for the Judge(s) to rule.