Clarification: Of course Judge Thomas was on the 3 judge panel, so his September 16 order is a revision of an order he previously had agreed to as a member of the panel; I'm not suggesting that the September 16 order was designed to overcome anything improper about the panel's initial decision to have the mandate issue immediately.
Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Scarberry, Mark Sent: Thursday, September 18, 2003 5:24 PM To: 'Discussion list for con law professors' Subject: Indefinite stay of panel decision in recall case? I sent the following analysis (based on Fed. R. App. Proc. 41) to a reporter. I think it's correct but would be happy to hear any disagreement. ******************* I thought I'd mention something that I haven't seen anyone raise, in case you think it's worth reporting on. The September 16 order entered by the Ninth Circuit (inviting briefs on the question whether to grant rehearing en banc) included the following sentence: "Issuance of the mandate will be stayed pending further order of this Court." I believe the mandate has to be issued for the 3 judge panel's decision to go into effect. As a result, the September 16 order (apparently entered by Judge Thomas, the court's en banc coordinator) amounts to an indefinite stay of the effectiveness of the panel's decision. If the full court votes not to rehear the case en banc, then Judge Thomas presumably will order that the mandate be issued immediately. If that were to happen, then the panel's order would go into effect immediately, if the 7 day stay had expired by then, or at the end of the 7 days if it hadn't yet expired. (Then the Sec. of State or the recall proponents could ask the U.S. Supreme Court to stay the effectiveness of the panel's decision while they filed petitions for cert. in the Supreme Court.) But until Judge Thomas (or another appropriate judge or group of judges) enters a further order, the panel's decision cannot go into effect, no matter how many days have passed. Ordinarily the mandate is supposed to be issued 7 days after a panel's decision, but the panel can order that the 7 day period be extended or shortened, and the Ninth Circuit often extends it. In this case the panel shortened the period, ordering that the mandate be issued immediately, but then provided that its order prohibiting the holding of the election on Oct. 7 would be stayed for 7 days. (See the very end of the panel's decision.) My guess is that the 3 judge panel did that so that its mandate would not be subject to being automatically stayed by the filing of a petition for rehearing en banc. Ordinarily a party can prevent issuance of the mandate for at least a short time by filing a petition for rehearing or a petition for rehearing en banc. But here because the panel had provided that its mandate would be issued immediately, it doesn't seem that the filing of a petition for rehearing or rehearing en banc would have had any effect on the mandate (that chicken would already have flown the coop); the panel's order would have gone into effect after 7 days even if someone filed a petition for rehearing en banc. I think Judge Thomas's September 16 order in effect retroactively prevents the mandate from being issued until further order of the court. (We might say that Judge Thomas had in effect "recalled" the mandate. Believe it or not, that's the term that's used when a mandate has issued and the court decides to undo the issuance of the mandate: we say that the court has recalled its mandate.) I hope this is helpful. By the way, my specialties are bankruptcy law and constitutional law (especially church-state law), not the law of appellate procedure. But I think I've got this one right. I'll probably run this by some other law professors, and I'll let you know if they disagree. **************************** Mark S. Scarberry Pepperdine University School of Law