Wendy Townley v. Ross Miller
693 F.3d 1041
9th Cir.2012Background
- Nevada’s longstanding None of These Candidates ballot option is at issue in statewide elections.
- The district court granted a preliminary injunction August 22, 2012 enjoining the option; a written order followed August 24, 2012.
- Notices of appeal were filed August 24–25, 2012 and consolidated August 28, 2012, which divested the district court of jurisdiction over the injunction under controlling authority.
- This court granted emergency stays pending appeal and allowed oversized motions to stay.
- Appellants contend the district court’s injunction (and related orders) should be reviewed by the appellate court; the district court’s actions would otherwise threaten ballot printing deadlines.
- The concurring opinion discusses alternative jurisdictional bases and the propriety of a stay under Winter v. NRDC to prevent irreparable harm to Nevada and maintain timely ballot printing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the panel has jurisdiction over the appeals despite the district court’s injunction. | Miller contends notices of appeal divested the district court of jurisdiction. | Miller asserts appellate review is proper under 28 U.S.C. § 1292(a)(1) and related authorities. | Yes; the panel has jurisdiction to review the district court’s injunction orders. |
| Whether the stay pending appeal was properly granted under Winter. | The state argues irreparable injury and preservation of appellate jurisdiction justify a stay. | Plaintiffs contend the district court should not be stayed without a merits showing. | The stay pending appeal was granted based on likelihood of success and irreparable harm to Nevada. |
| Whether Nevada’s None of These Candidates statute violates constitutional or federal-law requirements. | Nevada argues the statute contravenes constitutional or federal statutes. | The state contends the statute complies with constitutional and statutory requirements. | Not expressly resolved here; the stay and jurisdiction rulings concern procedural posture, not merits on the constitutional issue. |
| Whether the district court’s procedural delays were strategically used to evade appellate review. | Delays were deliberate to moot the appeal and hinder review. | Delays were discretionary management decisions unrelated to delaying appeal. | The concurrence describes the delays as deliberate attempts to evade appellate review; jurisdiction is preserved notwithstanding. |
| Whether the court may exercise jurisdiction to preserve appellate review when district court actions might thwart review. | Without intervention, appellate review could be moot. | Appellate court should not intervene absent necessity. | Yes; the court may exercise jurisdiction to preserve its ability to review. |
Key Cases Cited
- Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (filing of an appeal generally divests district court of jurisdiction over matters appealed)
- Davis v. United States, 667 F.2d 822 (9th Cir. 1982) (filing of a notice of appeal divests district court of jurisdiction unless court assists appellate process)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (stay standard and irreparable harm considerations for injunctions pending appeal)
- FTC v. Dean Foods, Co., 384 U.S. 597 (1966) (authority to preserve appellate jurisdiction when appeal may be perfected later)
- Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943) (principle that appellate courts may act to preserve jurisdiction)
- California Energy Comm’n v. Johnson, 767 F.2d 631 (9th Cir. 1985) (reiterates jurisdiction-preserving principles in the Ninth Circuit)