Madigan files for 30 extension to stay

[cm.stites]

I like where it says:

There must be some finality to this process. The motion should be denied.

I like how he posted quinns twitter in support of hb 183

[Elderberry]

edit: this post was a response on over-riding a veto and was incredibly late to the game so I nuked it...

 

Instead I will use this space to say "nice response Mr. Gura".....

 

And also to say this much about the aftermath of passing HB183 -- by virtue of being last to the table Illinois appears to be the national battleground for "us vs them"....

 

I suspect we have not seen the last of the games....

[milq]

I'm not accustomed to reading such documents but there's a lot of WIN in that response as far as I'm concerned!

 

I especially like that the Gov's tweets were called out. That's certainly something I wouldn't have thought of but seems genius now that I've seen it.

[BShawn]

I like where it says:

There must be some finality to this process. The motion should be denied.

I like how he posted quinns twitter in support of hb 183

 

+1

[Phatty]

I noticed that some content appears to have been lost in the copying process. I'm going to try to copy the response memo below with hopefully better formatting and all of the content included (except the footnotes, which I have omitted).

 

Plaintiffs-Appellants Michael Moore, Charles Hooks, Peggy Fechter, Jon Maier, Second Amendment Foundation, Inc., and Illinois Carry oppose Defendants-Appellees’ motion for an additional 30 day stay of the mandate beyond the 180 days already granted, and in support of their opposition submit:

 

1. Defendants’ motion is unauthorized by the Federal Rules of Appellate Procedure, plainly presented for dilatory reasons, fails to fully disclose the relevant factual circumstances, and otherwise lacks merit. Considering that the state’s remedial legislation passed with overwhelming veto-proof majorities in both houses, as well as the Governor’s deep and protracted involvement in this issue, the time for delay is over. This Court has spoken. The People of Illinois, through their representatives, have spoken. There must be some finality to this

process. The motion should be denied.

 

2. The Court’s original 180 day stay of the mandate was extraordinarily generous—especially in light of the fact that the fundamental “rights of the entire law-abiding adult population of

Illinois” are being violated. Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012). The current stay is already double the length of the maximum stay that may be granted, absent good cause, pending the filing of a petition for certiorari. Fed. R. App. P. 41(d)(2)(.

 

3. Indeed, the desire to seek Supreme Court review is the only authorized ground for seeking a stay of this Court’s mandate. Defendants cite no authority for a stay “pending disposition of newly passed legislation,” Motion, at 1, and their citation to Fed. R. App. P. 41(d)(1) is inapposite. That subsection does not authorize any separate motions for a stay of the mandate. It merely provides that “[t]he timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.” Id.

The only “motion” referenced in subsection (d)(1) is the motion provided for in subsection (d)(2)(A): “A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court.” Defendants do not discuss their plans for seeking

certiorari, but on April 26, 2013, Defendants applied to Justice Kagan for an extension of time to file their petition of certiorari by an additional 32 days, from May 23 to June 24, 2013. That petition was granted May 2, 2013. See Madigan v. Moore, U.S. Supreme Ct. 12A1053. That still leaves the gap between expiration of this Court’s stay on June 9 and their new deadline for seeking certiorari, which could potentially be extended through July 22. See Sup. Ct. R. 13.5 (maximum 60 days extension of time to seek certiorari). Extending this Court’s stay through July 8, as desired by Defendants, would fill the existing gap and close most of the optional remainder should Defendants obtain another extension to petition.

 

4. Defendants do not attempt to satisfy the difficult, but well established standards governing stay motions under Rule 41(d)(2). “When a party asks this court to stay its mandate pending the filing of a petition for a writ of certiorari, that party must show that the petition

will present a substantial question and that there is good cause for a stay.” Senne v. Vill. of Palatine, 695 F.3d 617, 619 (7th Cir. 2012) (Ripple, J., in chambers) (citations omitted). “The grant of a motion to stay the mandate ‘is far from a foregone conclusion.’” Id. (quoting 16AA

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3987.1 (4th ed. 2008)).

“[T]he party seeking the stay must demonstrate both ‘a reasonable probability of succeeding on the merits’ and ‘irreparable injury absent a stay.’” Senne, 695 F.3d at 619 (quoting Bricklayers Local 21 of Illinois Apprenticeship & Training Program v. Banner Restoration, Inc., 384 F.3d 911, 912 (7th Cir. 2004) (Ripple , J., in chambers)) (internal quotation marks and other citations omitted).

“n order to demonstrate a reasonable probability of succeeding on the merits of the proposed certiorari petition, a party must demonstrate a reasonable probability that four Justices will vote to grant certiorari and that five Justices will vote to reverse the judgment of this court.” Id. (citing California v. American Stores Co., 492 U.S. 1301, 1307 (1989); United States v. Warner, 507 F.3d 508, 511 (7th Cir. 2007) (Wood, J., in chambers); Williams v. Chrans, 50 F.3d 1358, 1350 (7th Cir. 1995) (per curiam)).

In applying this standard, we must consider carefully the issues

that the applicant plans to raise in its certiorari petition in the

context of the case history, the Supreme Court’s treatment of

other cases presenting similar issues and the considerations that

guide the Supreme Court in determining whether to issue a writ

of certiorari.

Id. (citation omitted).

 

5. As Defendants did not address the relevant guidelines for seeking a stay, discussion of the “reasonable probability of success” prong can be limited to observing that, considering the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), it is extremely unlikely that five justices would find the right to bear arms does not extend outside the home, or that the self-defense interest informing that right is diminished to the point of oblivion outside the home. The panel opinion’s survey of the Supreme Court’s guidance on the topic is argument enough.

 

6. Nor does equity aid Defendants. The fact that Illinois’s legislative session would end on May 31, 2013 was presumably known to the Court, the Defendants, the Legislature, and the Governor. Granting that much time half a year ago, plus a little bit more, should well have sufficed. Notably this delay well surpassed the normal time for seeking certiorari review, even accounting for the en banc rehearing procedure.

Nothing required the Legislature to wait until the last possible moment to pass a law. Many legislators are attorneys who should be used to working within court deadlines. The other 49 states provide ready legislative examples for regulating the carrying of guns in public, most of which are constitutional. And if the Attorney General wanted to, she could have petitioned for certiorari within the 90 days originally allotted from this Court’s December 12, 2012 decision, Sup. Ct. R. 13.1; within 90 days from the denial of rehearing en banc, Sup. Ct. R. 13.3; or even within the extension already obtained from Justice Kagan—although that would not necessarily entitle Defendants to stay the mandate.

Just as this Court’s extraordinary 180 day stay of the mandate was generous to the Legislature, so, too, was it very generous to the Governor. Respectfully, the notion that the Governor requires additional time to gather his thoughts about this subject is not well taken.

Like his fellow attorneys in the Legislature, the Governor should have budgeted time to think about this topic (which is not new to him) within the 180 days allotted by the Court.

Nor was the Governor a mere bystander to the process of responding to this Court’s decision. The Governor has been an active participant in the process leading to passage of the remedial bill. Defendants argue that the Governor needs more time to consider the

remedial legislation, but they ignore that the Governor closely followed the legislative process—and took positions on various bills and amendments within hours of their proposal. Indeed, the Governor wasted no time tweeting his views as the legislation emerged. See, e.g.

https://twitter.com/ GovernorQuinn/status/338000476404580353 (last visited June 4, 2013) (“SB2139 is wrong for #IL. We need strong gun laws that protect the people of our state & this bill puts public safety at risk”); https://twitter.com/GovernorQuinn/status/33800068438 3350788

(last visited June 4, 2013) (“I will not support this SB2193 and I will work with members of the #IL Senate to stop it in its tracks”); https://twitter.com/GovernorQuinn/status/339478339855187969 (last visited June 4, 2013) (“Sen. @KwameRaoul’s HB183 provides a reasonable framework that would protect critical gun safety ordinances across#IL”). His views—and strategy—are likely quite well-formed.

 

7. Any balance of hardships clearly weighs against further staying the mandate, as Defendants’ motion promises no end in sight. Their citation to the Illinois Constitution is incomplete. While it is true that “[t]he Illinois Constitution affords the Governor sixty days to

review the Act and sign it into law,” Motion at 2, ¶ 4 (citing Ill. Const. (1970) art. IV, § 9(), that same section also provides for an additional, protracted legislative process:

The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that

such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.

See Ill. Const. (1970) art. IV, § 9(e).

Thus, under Illinois law, the Governor may wait until July 30 to present either a regular or amendatory veto—and he may yet veto the bill again if he does not certify that an amended bill “conforms to his specific recommendations.” Id.

 

However, the most likely outcome of a veto, regular or amendatory, would be a decisive override. A veto may be overriden by a 3/5ths vote of both houses. See Ill. Const. (1970) art. IV, § 9©. The remedial legislation passed the Senate by a vote of 45-12-1 (76.27% of 59 seat chamber). It passed the House by a vote of 89-28 (75% of 118 seat chamber). If the Governor wishes to express himself further, let him do so—as did the Legislature—within this Court’s generous 180 day stay. After all, nothing required the state to enact a new law. The carrying of handguns is largely unregulated in several states.

The new, lengthier stay would extend through July 8. But there is no guarantee that another stay would not be sought through the Governor’s deadline to act on July 30 (assuming no petition for certiorari is filed by July 22), and critically, the motion does not commit

the Governor to let the legislative process end one way or another by either date.

 

The public cannot have any “interest in allowing the challenged laws to remain in effect,” Motion at 4, ¶ 8, where those laws were declared to violate a fundamental constitutional right nearly six months ago, and where over three-quarters of each legislative house has voted to enact a broad remedial compromise.

 

8. Notwithstanding this Court’s decision, Defendants continue to operate under the impression that the Second Amendment is a public harm, rather than a public good. Not so. The right to bear arms advances the interest in personal self-defense. Public safety is jeopardized each and every day that the right is denied to the people of Illinois. Perhaps some harm would befall the public in the absence of regulation—but the Constitution is primarily concerned with the very real harm inflicted upon the public in the absence of a right to bear arms. The public’s interest lies in having the state respect constitutional rights. The Governor should accept the fact that the vote totals in favor of the remedial legislation reflect the People’s will far better than does Defendants’ motion for additional delay.

 

Conclusion

 

The motion should be denied.

[skottieusa]

Today Plaintiffs filed their 12 page response to the State's request to stay mandate.

[Phatty]

I'm not accustomed to reading such documents but there's a lot of WIN in that response as far as I'm concerned!

 

I especially like that the Gov's tweets were called out. That's certainly something I wouldn't have thought of but seems genius now that I've seen it.

The response is very well done. Great job to whoever drafted it, especially considering the less than 24 hours turn around time.

[cm.stites]

if you still have the pdf you can also click more reply options and it will open the full editor and it will allow you to attach the pdf

[Phatty]

Thanks for the tip cm.stites. Attached is the response.Moore - Response to Motion for Stay of Mandate.pdf

[cls74]

I love that they included his tweets. LOL justt goes to show, the Internet is and will become a source of public record regardless of your stature.

[Mr. Fife]

Dang, it looks like it's up to Myerscough again.

[Davey]

Phatty,

 

Thank you for posting that.

[Tvandermyde]

Shepard attorneys are working on a response as well

[miztic]

Dang, it looks like it's up to Myerscough again.

 

her? why? shouldn't this be up to Posner and the two other judges who heard the case?

[Mr. Fife]

Dang, it looks like it's up to Myerscough again.

 

her? why? shouldn't this be up to Posner and the two other judges who heard the case?

 

I dunno. Her name is in the pdf

[Davey]

Dang, it looks like it's up to Myerscough again.

 

Isn't this the one that passed the buck on the wilson case?

[Danielm60660]

Next she will be paying for and handing out no carry signs to every business in Illinois.

 

 

I'll take a big stack of 'em. I hope they are a high quality stiff plastic. They'd make nice pooper scoopers...

[Phatty]

Dang, it looks like it's up to Myerscough again.

 

her? why? shouldn't this be up to Posner and the two other judges who heard the case?

 

I dunno. Her name is in the pdf

Her name is on the pdf document only to identify her as the district judge that the case was originally appealed from. She most definitely will not be the judge deciding this motion.

[RandyP]

I would wager up to 5 cents that the 30 day delay is granted. It is arguably not the Governor's fault that the legislature dragged their tootsies for 6 months and passed something at the almost last second.

 

I mean....that bill has lots of words in it and the Quinnster only wants the chance to give it due deliberation before flicking his Bic. Heck, he in reality simply wants more time to review it than any of the Legislators who voted for it took pretending they read it at all.. What judge would not sympathize with his plight?

[TyGuy]

This is annoying. Can we just go back to watching the ILGA do nothing for six months already?

[cls74]

Wish there was some way to file a motion to suspend all home rule jurisdictions from implementing new laws for 30 days as well if it is granted. Keep things fair on all levels.

[Smittyp83]

It's funny how we are all able to read the bill, debate it's merits and downfalls, send witness slips regarding the amendment and rally support for the final bill - all in one day after it was posted, but somehow, the Governor, with his team of lawyers, can't seem to figure it out in 9.

[Nic]

It's funny how we are all able to read the bill, debate it's merits and downfalls, send witness slips regarding the amendment and rally support for the final bill - all in one day after it was posted, but somehow, the Governor, with his team of lawyers, can't seem to figure it out in 9.

 

It's because we're working for free. If we paid you $190,000 a year to do this, you'd work slower too.

[SiliconSorcerer]

I just don't see how this can't be seen as a huge disregard for the authority of the court and their decisions. If they grant this everything is yeah maybe you might have to do what we say eventually but deadlines are just arbitrary and recommendations.

[RINGKINGS]

Thanks for posting that Phatty............. brilliant, well documented response........ making transparent the delaying tactics and the virtual perjury by omission in Madigan's motion. Having read both the motion and the response, IMO, a good judge would not only deny the motion but also chastise the AG for filing a motion so devoid of merit or fact.

[Graybeard]

Thanks for the tip cm.stites. Attached is the response.Moore - Response to Motion for Stay of Mandate.pdf

 

Thanks Phatty, very nice response, definitely lays out the rationale for a denial much better than the Defendants laid out the rationale for the request. I think we have a winner!

[woldy2]

Wish there was some way to file a motion to suspend all home rule jurisdictions from implementing new laws for 30 days as well if it is granted. Keep things fair on all levels.

 

This

[TyGuy]

It's because we're working for free. If we paid you $190,000 a year to do this, you'd work slower too.

LOL

[POAT54]

Howdy, I am relatively new to all of this. But when I read Lisa's motion for an extension, I believe she acknowledged she will not be able to file for a Cert To SCOTUS.

State defendants recognize that even the temporary denial of a constitutional right

[sailor]

One of the best lines:

 

The other 49 states provide ready legislative examples for regulating the carrying of guns in public, most of which are constitutional.