Peruta v. San Diego

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The order was, in relevant part,
Each party is each directed to file a response of no more than 6,000 words
addressing the pending motions to intervene filed with this Court on February 27,
2014.
...
The responses shall be filed within 21 days of this order
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Couple of things. First, although the parties were directed to file responses to the intervention motions by a specified date, that order was directory, not mandatory, i.e., setting a filing deadline for filing. So Gore did not have to file anything, and there is no penalty because he "failed" to do so.
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Can't speak to 'penalty', but I would like to read your distinction between 'directory' and 'mandatory' related to an order issued by 9th Circuit, especially discussing the Court's use of "shall" in the 21 days sentence.
 
After arguing that the AG has no statutory right to intervene, Appellants conceded that the court nonetheless has discretionary authority under the rule to grant the motion.
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This is the question I asked...does the Court actually have the discretion to let the AG intervene? Especially in light of the arguments against such intervention.

The other question is if the Court is bound to make a decision within a certain time. Seen some comments that they usually have to opine within a week, some have said three weeks.

Thanks in advance.
 
HarrySchell said:
This is the question I asked...does the Court actually have the discretion to let the AG intervene? Especially in light of the arguments against such intervention.

The other question is if the Court is bound to make a decision within a certain time. Seen some comments that they usually have to opine within a week, some have said three weeks.
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For question #1, yes, the Court has FRCP 24(a)(2) and 24(b).

For #2, no one has been able to show me anything which suggests the court is bound to some deadline.
 
"Intervention under 24(a)(2) is MANDATORY, not discretionary."

Yes, but only if here is a statute that allows intervention. The AG relies on a statute that applies only if there is no representative of the state who is a party to the action--and Gore, for the purposes of issuing licenses is a state actor. Hence, the elements of mandatory intervention are not present. However, even when mandatory intervention is not appropriate, and as Peruta argues, the court in its discretion may nonetheless allow a new party to intervene, which in this case may have been more probable given the fact that Gore has stated that he will not further pursue the case.

Peruta's argument may be found here http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000722:
 
"Can't speak to 'penalty', but I would like to read your distinction between 'directory' and 'mandatory' related to an order issued by 9th Circuit, especially discussing the Court's use of "shall" in the 21 days sentence."

All briefing is "discretionary." No party can be "required" to file any brief, and a failure to file is a waiver of the right to do so. Gore waived his right. End of story.
The "shall" had to do with when that brief, should a party have elected to prepare one, had to be on file. Example: the court orders a party to file a brief/motion/answer by a date specified. The party elects not to file. This is not a contempt, but subjects the party to a default. Same here. Gore has elected not to file a brief, and has thus waived his right to do so.
 
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The fact the ruling has been put on hold so they can work through AG and others intervining proses . Does this extend the time the judges on the 9th have to call for an en-banc or has there dead line past to do so ?
 
It appears that the Court's time to call for en banc sua sponte may be extended.

But, absent something from the Court, we don't really know.

I ran across this yesterday - http://www.ca9.uscourts.gov/content/faq.php
17. How long does it take from the time of the notice of appeal until oral argument?

For a civil appeal, approximately 12-20 months from the notice of appeal date. If briefing isn't delayed, approximately 9-12 months from completion of briefing.

For a criminal appeal, approximately 4-5 months after briefing is complete.


18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.


19. How long does it take to decide a petition for panel rehearing or petition for rehearing en banc?

The Court has no time limit. A decision on a petition for rehearing en banc may take a few months.
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Right now, we're at the 'will the Court allow a petition to rehear en banc?' stage. Based on the Appellant's brief, the guess seems to be 'yes, the Court will allow it'.
 
I suppose I am answering my own question but will the 9th maintain the stay if they decide for en banc, with the other decisions and CA counties adopting Peruta rules? I would guess so.
 
Right about now I'm wishing Peruta never said they're ok with the AG intervening . She makes a good argument and I hope the court lets Peruta reply to there AGs reply . ( why does she get to reply I might ask ) now Peruta needs to point out each and every time the AG has refused to be apart of a lawsuit that was similar and why she felt no need to be apart of those .
 
I don't agree with the State's characterization of the Appellant's response, nor do I see this as a case where the constitutionality of a state statute is at issue. As to the latter, the Peruta opinion goes to great pains to explain that the constitutionality of the statute is not at issue, only its interpretation and application by Sheriff Gore. In fact, in most of the urban counties and in Sacramento, the sheriffs are virtual "shall issue', accepting self-defense as "good cause." Is Harris trying to force these sheriffs---should she prevail en banc--to return to a standard of "heightened" need in order to issue--as a matter of constitutional interpretation? Hmm.

The best thing that can happen right now is for the motion to intervene to be granted (likely) and the motion for en banc to be denied, paving the way for a cert petition, hopefully in time for the Supremes to do a "grant and hold" on Drake. The worst thing that could happen would be a reversal by an en banc panel. Since such panels are chosen randomly (except for the Chief Justice), there is a definite risk that that could occur--and Peruta would be in a weak position on any cert petition because the split would have disappeared.
 
The one thing that the state brings up correctly is that the statute was meant to give unlimited authority to the sheriffs to interpret "good cause". That has now changed. The statute, while it can of course be interpreted to self defense(w/no further explanation)=good cause, wasn't meant to mean exactly that in all cases.
 
Metal God said:
Right about now I'm wishing Peruta never said they're ok with the AG intervening . She makes a good argument and I hope the court lets Peruta reply to there AGs reply . ( why does she get to reply I might ask ) now Peruta needs to point out each and every time the AG has refused to be apart of a lawsuit that was similar and why she felt no need to be apart of those .
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Don't sweat the AG being granted intervenor status. All she'll do is ask for en banc, which has essentially already been done. In Prieto, the Sheriff has asked for en banc (and he has the standing to do so). The Prieto decision is nothing but, "See Peruta" , so we will see a vote regarding en banc, and Peruta will be hanging in the balance if en banc is granted.

Also, Chuck Michel said the police chief in Baker (which is the same, just a "see Peruta" decision) will also ask for en banc. Mr Michel also said the city of San Francisco will disobey Peruta, and fight it in court, up to and including asking for en banc. There are also a half-dozen or so cases in the 9th which have been stayed pending Peruta, and any of them could ask for en banc also.

It's going to happen, and that's not my opinion, it's the opinion of Mr Michel.

62ColtNavy said:
Since such panels are chosen randomly (except for the Chief Justice), there is a definite risk that that could occur--and Peruta would be in a weak position on any cert petition because the split would have disappeared.
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Not disappeared -- there's still the 7th.
 
OK, Drake is now listed as "distributed for conference of April 18th":

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-827.htm

So we seem to have a race here: various judges of the 9th Circus plus the state AG and such want to destroy the Peruta holding before the Supremes decide whether or not to hear Drake.

What can they do to damage Peruta before April 18th?

I realize that the Supremes might stall on deciding whether or not to hear Drake for what, a week or two more?

Who else believes (as I do) that once the Supremes decide to hear Drake, assuming they do of course, it will basically "moot" the remaining steps at en banc in Peruta? In other words, we've either got five votes for Drake on the merits or we don't?
 
Jim March said:
What can they do to damage Peruta before April 18th?
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Nothing, imo.

Who else believes (as I do) that once the Supremes decide to hear Drake, assuming they do of course, it will basically "moot" the remaining steps at en banc in Peruta?
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I think we can agree a SCOTUS decision in Drake is likely to address Peruta, but SCOTUS isn't bound by anything to do so.
 
Well...in theory the 9th could rush Peruta into en banc and put it on hold before the 18th. They can't come to a new decision before April 18th, right?

The US Supreme Court is in a pickle if they don't decide to hear Drake because it leaves a circuit split (and remember, Moore out of the 7th Circuit is also a pro-carry split with the anti-carry 2nd/3rd/etc. circuits). And there's no guarantee another case will come along. Peruta might not be appealed (which would leave the 9th as shall-issue-required) and then the only circuit that still has any may-issue states in it is the 1st with MA, or the DC Circuit if we can ever get a ruling on THAT carry case! So assuming they don't want to leave a permanent or at least long-term circuit split, the only remaining way to make sure that doesn't happen is by agreeing to hear Drake...
 
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