Thursday, September 18, 2003
Tea leaves in San Francisco
From the end of a short order filed Tuesday in the Shelley case to set a briefing schedule on the question of "whether or not this case should be reheard en banc":
Issuance of the mandate will be stayed pending further order of this Court.
The panel opinion (page 65) had already directed that the mandate (essentially the judgment of the court, as opposed to its written opinion) issue "forthwith" — meaning it thought its decision ought to become binding and effective before the normal amount of time for parties to seek en banc or Supreme Court review. But the panel had also stayed the mandate for the lesser period of seven days "to allow the parties to seek further relief from this decision, if they so desire." The effect of those two directions was to compress the timetable for further appeals.
So the en banc court has already taken away this timing issue from the panel. Hmmmm.
It could be that the full Ninth Circuit simply wanted to make sure it had beyond next Monday to vote on whether to rehear the case en banc. But an indefinite stay of the panel's mandate is pretty strong stuff. It's exactly what happens when a full court of appeals votes to rehear a panel opinion en banc.
And I think that's what's going to happen here — very likely without further oral argument, probably without further briefing, and very possibly with a summary opinion from the en banc court early next week simply announcing that it's vacating the panel opinion, with a fuller written opinion to follow, so that everyone can continue making feverish preparations for the October 7th election.
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