Illinois Ban on Carry Ruled Unconstitutional (See Page 7)

It's called a "stay of mandate" pending a petition for cert and such stays are common in high profile cases such as this one. All Illinois need show under Rule 41 FRAP is that the petition for cert would present a "substantial question" and there is "good cause for a stay." They really don't need it to merely file a petition, as they already got a 180 stay of mandate, which is way more than the 90 days for seeking cert. Of course, a stay of mandate would operate to stay the case until the SCT issues an order on cert. If cert is granted, then the stay continues in place. If cert is denied, then the mandate issues "immediately." They have until midnight tonight (Jan 8, 2013), Chicago time, to file any rehearing petition.

PS: Al, I think the 7th Circuit can take as much time as they want to decide whether to grant rehearing. Nothing in the rules impose any 10 day limit for consideration of such a petition.
 
I thought I had read something about a time limit in their local rules... But I'll take your expert word on this.

This wouldn't be the first time I was mistaken... It won't be the last! ;)
 
But what is the inner workings on how the court decides?

Do they meet on Tuesdays and Thursdays and go over every en banc request and just do a show of hands or something? Are there 7 judges set aside just to vote on en banc petitions? Do all the judges get together and vote on it?

I'm wondering how that happens.
 
All active court of appeals judges on the 7th Circuit can participate in deciding whether to grant en banc. Any judge can request an answer to a petition for rehearing and no answer may be filed unless requested. Such a request for an answer is made before a vote as no petition will be granted without requesting an answer first. If one active judge requests a vote after receiving an answer, then every active judge votes on whether to grant. If no active judge requests a vote after a certain amount of time, then the en banc petition is denied without a vote. That certain amount of time varies from circuit to circuit, as does the internal operating procedure. In the 7th Circuit, here is part of Rule 5 of the 7th Circuit internal procedures:

d) Voting.

(1) Majority. A simple majority of the voting active judges is required to grant a rehearing en banc.
(2) Time for Voting. Judges are expected to vote within 14 days of the request for a vote or within 14 days of the filing of the answer pursuant to the request for a vote, whichever is later.
(e) Preparation of Order. After the vote is completed, the authoring judge, or the presiding judge of the panel if the author is a visiting judge, will prepare and send to the clerk an appropriate order. Minority positions will be noted in the denial of a petition for rehearing en banc or the denial of a petition for rehearing unless the judges in the minority request otherwise. Minority positions will not be noted in orders granting a rehearing or rehearing en banc unless so requested by the minority judge. An order granting rehearing en banc should specifically state that the original panel's decision is thereby vacated.

(f) Participants in Rehearings En Banc. Only Seventh Circuit active judges and any Seventh Circuit senior judge who was a member of the original panel may participate in rehearings en banc.

(g) Similar Procedures for Hearings En Banc. Similar voting procedures and time limits shall apply for requests for hearings en banc except that a staff attorney may circulate such a request.

(h) Distribution of Petitions. Petitions for rehearing that do not suggest rehearing en banc are distributed only to the panel. Petitions for rehearing en banc are distributed to all judges entitled to vote on the petition.

http://www.ca7.uscourts.gov/Rules/rules.htm#opproc5


Obviously, if a judge tells his colleagues that he needs more time before voting then the 14 days can stretch out to more time.
 
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It doesn't sound like they vote on whether to review

It's a matter of abstaining from requesting an answer or requesting an answer.

So, for instance, when the petition comes in Judge Williams could request an answer and that would trigger the review?
 
He or any 7th Circuit Judge can request an answer. Rule 5(b) of the internal procedures says he must make that request within 14 days of the distribution of the petition. A request for an answer does not trigger review. Indeed, such a request does not mean necessarily that he will request a vote after the answer, but a request for an answer means the petition has raised the interest of at least one judge. Under the internal operating procedures, a judge then has 14 days after an answer is filed to request a vote and then another 14 days for everyone to vote on the petition. (see "whichever is later"). En banc is not granted unless a majority of the active judges vote for it.
 
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@esqappellate:
Not to go too far off topic but Illinois politics basically mandates that you get a good showing outside of the Metro-Chicago area or you don't win. That means winning over moderates "Down State" if you want to win.


This move without a doubt is going to push a lot of moderates downstate away from her.
She might TRY to run in a primary against our current Gov. Quinn, but it has all but been announced that Bill Daley (Ex-Chicago Mayor Richard Daley's brother) is going to run for Gov. He would probably beat the both of them in the primary.

Our current Gov. is so unpopular right now the political establishment pretty much has to pick someone to run against him in a primary if they hope to fend off an as yet unknown Republican Challenger.

Mind you that’s IF Quinn runs for Re-election at all. The powers that be could still convince him its time to step aside and let someone else have a go at it.

On another interesting note, just to provide some context on how things work here in Illinois:
Unlike many states the Gov. is not all that powerful. At best he is #3 "in charge". The Agenda is set primarily by the speaker of the house Mike Madigan (Lisa's dad) and the Mayor of Chicago.
 
Excuse my ignorance, but in laymen's terms, what does all of this mean and what will happen next for those of us in Illinois? :confused:
 
USA: I would say if you have not already you should check out http://illinoiscarry.com/forum/

It will without a doubt be a big topic over there.

I am no legal expert but as I understand it the court has (10?) days to decide if they will rehear the case En Banc. If they do then the 180 day "count down" goes out the window and everything is in limbo until they rehear the case.

As I understand it, someone correct me if I am wrong IF the 7th decides not to re-hear the case En-Banc then they can toss out the 180 day count down all together.

This still leaves an appeal, one way or the other to the SCOTUS open though.
 
I thought they had 10 days to respond to the AG also, but I don't think so. I am having trouble understanding the process, but if the judges have 14 days to decide if they want to review the case or not - that obviously exceeds 10 days.

I'm not even sure if they have to notify a petitioner, but it seems like it would be (14+14) 28 days before a decision is made to vote on en banc review. And then another 14 days befre the vote actually takes place.
 
As noted above, the internal rules of the 7th Circuit give a judge 14 days to ask for an answer to the petition. If there is no request for an answer or no request for a vote in 14 days, the panel can deny the en banc petition. If an answer is ordered, the court will set the time for that filing, generally 14 days but that can vary. It could be longer than 14 days. If the request for answer is made on the 14th day and the winner has 14 days to file, the court has another 14 days to consider the answer and call for a vote. If the vote grants en banc rehearing, that is immediately released and acts to vacate the panel's decision. So it could be 14 + 14 + 14 plus time to allow for distribution of the petition and distribution of the answer to the full court.

EDit; A judge is supposed to request a vote within 10 days of the distribution of the answer:
See Rule 5(a): (a) Request for Answer and Subsequent Request for Vote. If a petition for rehearing en banc is filed, a request for an answer (which may be made by any Seventh Circuit judge in regular active service or by any member of the panel that rendered the decision sought to be reheard) must be made within 14 days after the distribution of the en banc petition. If an answer is requested, the clerk shall notify the prevailing party that an answer be filed within 14 days from the date of the court's request. Within 10 days of the distribution of the answer, any judge entitled to request an answer, may request a vote on the petition for rehearing en banc.
 
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As I understand it, someone correct me if I am wrong IF the 7th decides not to re-hear the case En-Banc then they can toss out the 180 day count down all together.
Click to expand...

I thought that this does not affect the 180 day time table. If this appeal request is not granted in the 10-14 day period from now than the 180 day is still on the table?

Not surprising that Lisa Madigan would do this. She probably consulted with her Dad and the Mayor about what to do. She would have received too much backlash if she did not put up a fight.

Way to waste my money on something that was already decided. Hopefully the judges will see the waste in this and move on by not granting an appeal.

I am still picking out my concealed carry gun and by the time the 180 days is up I might have just located a S&W Shield so I am not too worried.
 
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if en banc is granted the 180 day stay is moot as a grant of rehearing en banc acts to vacate the panel opinion. The cert time would then run from en banc court's decision and the en banc court can stay or not stay its decision as it sees fit. If rehearing is denied, then the cert time runs from the date of the denial but the 180 days stay remains in effect, unchanged, unless the panel changes it or a stay pending a petition for cert is ordered under the Rules.
 
Really? :D OK, how about this one:

Having only skimmed the petition, my mind has changed. The 7th is likely to grant cert.

The arguments by Madigan, on the surface. are quite strong (even if I think they are ultimately merit-less). Strong enough the the court may very well want to hear the case in full.
 
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