AP has the report here, and Jess Bravin posted the petition here. As I noted in my post yesterday, it was unclear how the 9th Circuit could sua sponte vacate before the 25 day period was up in which the losing party can file for reconsideration. That is what General Suter’s letter instructed the 9th Circuit to do. But they, sua sponte, vacated the stay on Judge Walker’s opinion. The supporters ask Kennedy to vacate the 9th Circuit’s order dissolving the stay, or say the 9th Circuit lacked jurisdiction to dissolve it. The brief alleges that the without this relief, “the Ninth Circuit will circumvent the proper rules and procedures established by this Court.”
Here is the summary of the argument:
First, the Ninth Circuit lacked authority to issue its Order purporting to dissolve the stay because this Court’s grant of certiorari deprived the Ninth Circuit of jurisdiction in this case. The Ninth Circuit does not reacquire jurisdiction-even for the limited purpose of dismissing the appeal or dissolving the stay-until this Court’s final disposition, which occurs when this Court sends a certified copy of the judgment to the Ninth Circuit. But even though this Court has not yet issued a certified copy of the judgment, the Ninth Circuit purported to dissolve the stay, a maneuver for which it lacked jurisdiction.
Second, the Ninth Circuit’s attempt to dissolve its stay violated the terms of its own stay order. That order provides that “the stay shall continue until Íinal disposition by the Supreme Court.” Order at 4, Perry v. Brown, No. 10-16696 (9th Cir. June 5, 2012), ECF No. 425-1 (attached as Exhibit A) (emphasis added). But Íinal disposition by this Court has not yet occurred, and it Will not happen until 25 days after entry of this Court’s decision. See Supreme Court Rule 45(2), (3). The Ninth Circuit thus violated the terms of its own stay order.
Third, because the Ninth Circuit’s Order purporting to dissolve the stay fails to comply with applicable rules and procedures, this Court has a significant interest in supervising the Ninth Circuit and bringing it into compliance. Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.
Fourth, the relief requested is necessary to ensure that Petitioners have a meaningñll opportunity to exercise their right to petition for rehearing, a right provided by this Court’s Rules. See Supreme Court Rule 44(1). Petitioners thus request relief` to preserve that right.
And Reinhardt thought they wouldn’t catch this one.
Quick, someone call Nino back from the pool. He will have to prepare a quick dissental (or whatever the hell you call this one) on the 9th Circuit’s lawlessness.
Update: Tom Goldstein thinks that the 9th had the authority to dissolve the stay:
Whether the emergency request to Justice Kennedy can succeed is unclear. But it is unlikely. As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket.
Ironically, AMK was one of the dissenting justices who thought that the Prop 8 supports *had* standing. Now, because the 9th Circuit did not wait long enough, they will be denied even a chance at rehearing. What a mess.
Update: Goldstein updated the post, and added this pivotal sentence (which his previous analysis omitted):
Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind.