James Bopp has stated that he intends to appeal the
stay order to the D.C. Circuit court of appeals. I do not think he can do
so. Bopp perhaps is treating this as ordinary litigation under Federal Rule
of Appellate Procedure 8, which provides the general rules for seeking a
stay when an ordinary piece of litigation is filed in federal district court.
In ordinary circumstances, the request for a stay goes to the intermediate
federal appellate court before the Supreme Court.
The BCRA provides for a special procedure, however:
"(a) Special rules for actions brought on constitutional
grounds.--If any action is brought for declaratory or injunctive relief to
challenge the constitutionality of any provision of this Act or any amendment
made by this Act [enacting sections 438a, 439a, 441a-1, 444i, and 441k of
this title and section 510 of Title 36, amending sections 431, 434, 437g,
441a, 441b, 441d, 441e, 441h, 453, and 455 of this title, section 607 of
Title 18, and section 315 of Title 47, renumbering former section 510 of
Title 36 as section 511 of that title, repealing former section 439a of this
title, and enacting provisions set out as notes under this section and sections
434, 437g, 437h, 454, and 455 of this title and section 994 of Title 28],
the following rules shall apply:
"(1) The action shall be filed in the United States District Court for the
District of Columbia and shall be heard by a 3-judge court convened pursuant
to section 2284 of title 28, United States Code.
"(2) A copy of the complaint shall be delivered promptly to the Clerk of
the House of Representatives and the Secretary of the Senate.
"(3) A final decision in the action shall be reviewable only by appeal directly
to the Supreme Court of the United States. Such appeal shall be taken by
the filing of a notice of appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, of the entry of the final decision.
"(4) It shall be the duty of the United States District Court for the District
of Columbia and the Supreme Court of the United States to advance on the
docket and to expedite to the greatest possible extent the disposition of
the action and appeal."
28 USC 2284 provides in turn:
(a) A district court of three judges shall be convened
when otherwise required by Act of Congress, or when an action is filed challenging
the constitutionality of the apportionment of congressional districts or
the apportionment of any statewide legislative body.
(b) In any action required to be heard and determined by a district court
of three judges under subsection (a) of this section, the composition and
procedure of the court shall be as follows:
(1) Upon the filing of a request for three judges, the judge to whom the
request is presented shall, unless he determines that three judges are not
required, immediately notify the chief judge of the circuit, who shall designate
two other judges, at least one of whom shall be a circuit judge. The judges
so designated, and the judge to whom the request was presented, shall serve
as members of the court to hear and determine the action or proceeding.
(2) If the action is against a State, or officer or agency thereof, at least
five days' notice of hearing of the action shall be given by registered or
certified mail to the Governor and attorney general of the State.
(3) A single judge may conduct all proceedings except the trial, and enter
all orders permitted by the rules of civil procedure except as provided in
this subsection. He may grant a temporary restraining order on a specific
finding, based on evidence submitted, that specified irreparable damage will
result if the order is not granted, which order, unless previously revoked
by the district judge, shall remain in force only until the hearing and determination
by the district court of three judges of an application for a preliminary
injunction. A single judge shall not appoint a master, or order a reference,
or hear and determine any application for a preliminary or permanent injunction
or motion to vacate such an injunction, or enter judgment on the merits. Any
action of a single judge may be reviewed by the full court at any time before
final judgment."
In my look at the cases described under this section, I see no appeals to
the Court of Appeals in circumstances similar to this case. (There are some
appeals where, for example, the three-judge court is improperly constituted,
etc.) I see no basis here for Bopp's decision.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html