As most folks probably know, the 7th Circuit issued a decision today affirming Judge Young’s injunction prohibiting enforcement of Indiana’s law banning same sex marriage. An interesting technical question is what effect, if any, this decision has on the stay (via the Indiana Law Blog) issued by a 7th Circuit panel in June, a few days after Judge Young’s decision. As the Indiana Law Blog reports, the Attorney General has issued a statement indicating its position that the stay remains in effect.
So what gives? It has to do with Fed. R. App. Proc. 41 which discusses issuance of a mandate by the Circuit Clerk following an opinion of the 7th Circuit. The issuance of a mandate terminates the Court of Appeals jurisdiction over the case, and it instructs the lower court how to proceed. Typically, the mandate issues seven days after the time has expired (usually two weeks – see Fed. R. App. Proc. 40) for an appellant to petition for rehearing by the full court (instead of just the panel who issued the opinion) or after a timely filed petition is denied. This gives the appellants the opportunity to exhaust their remedies with the Court of Appeals without giving the District Court conflicting opinions about entering judgments and whatnot.
Based on the research I’ve done so far, I think the issue would be clear if the District Court had issued the stay — absent a mandate, the District Court would not be instructed to do anything; lift its stay or otherwise. The District Court’s stay would therefore be in effect.
There might well be case law on this I have not yet discovered, but the effect of the panel opinion on the stay seems more ambiguous given the fact that it was the 7th Circuit panel who issued today’s opinion that entered the stay under Fed. R. App. Proc 8(a)(2) in the first place. Presumably this panel could have lifted its own stay by issuing an order to that effect at any time during these proceedings. The question is whether the panel has, in fact, lifted the stay – at least by implication by virtue of today’s opinion – when the 7th Circuit panel wrote, “The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are AFFIRMED.” Does that language override the earlier order of this same panel that said the injunction was stayed pending resolution of the appeal?
I don’t know that the answer to that is necessarily clear (absent, as I said, case law on point that I have not yet found). But the Indiana Attorney General has taken the position that the answer is that today’s opinion does not override the panel’s earlier order issuing a stay. My guess would be that most or all state officials would defer to the Attorney General under these circumstances.
The Attorney General has indicated its intent to seek a stay from the United States Supreme Court pending its petition for certiorari to the Supreme Court and that the Supreme Court has granted such stays in two other cases. If the United States Supreme Court orders a stay, that obviously clears up any ambiguity.
Note that it was the AG’s office, not the Counsel to the Governor who made the statement this time.
I read somewhere else the stay is lifted automatically if another isn’t granted in 21 days. Is that true?
Not exactly. I think the 21 days comes from the idea that a mandate automatically issues 7 days after the period to apply for a rehearing en banc expires. That period is 14 days. So, you have 14 days to ask that the entire 7th Circuit Court of Appeals hear the matter (as opposed to the 3 judge panel). If you don’t do that, then the mandate from the Clerk of the 7th Circuit issues in 21 days. The mandate is a document that finalizes the Court of Appeals handling, certifies the Court of Appeals opinion to the District Court, instructs the District Court on further action, and terminates the jurisdiction of the Court of Appeals. Until the mandate issues, the opinion is, in some sense, preliminary.
If one or both of the appellants petition for a rehearing by the entire 7th Circuit the mandate doesn’t issue until 7 days after the 7th Circuit either denies the petition for rehearing or, if it grants the rehearing, 7 days after it issues its opinion.
Another option is that, before the mandate issues (or after even – but that would create a gap) the State can petition the Supreme Court for a stay.
One other legal question — there is one court (the District Court in New Orleans) that did rule in FAVOR of a state’s right to ban same-sex marriages. If the Fifth Circuit upholds that ruling, does that give the Supreme Court the opening some justices might be looking for to knock back the other 21 rulings in favor of same-sex marriage? And, while Posner is know for being over-the-top, do you think he wrote his opinion that way to signal to the Supremes that they should not find ANY value to the states’ arguments?
A split in the Circuits makes it more likely that the Supreme Court will take up an issue on certiorari. On this subject, I don’t think they need a split to be inclined to take the case.
I do think Judge Posner was writing with the Supreme Court in mind as an audience.