Wendy Townley v. Ross Miller

693 F.3d 1041, 2012 WL 3849016

Opinions

ORDER

The order issued September 4, 2012 is hereby amended and this amended order is designated for publication.

Appellants Ross Miller, Nevada Secretary of State, and Kingsley Edwards, a Nevada voter, appeal from the district court’s preliminary injunction order enjoining Nevada’s nearly 37-year-old statute that requires a “None of These Candidates” option on the ballot in statewide elections for state or federal office.

The district court entered its preliminary injunction order, dated August 22, 2012, on August 24, 2012. The preliminary injunction order reads in part:

[T]he Court grants [Docket Number] 15 Motion for Preliminary [Injunction. Defendant Secretary of State Ross Miller, his agents, employees, affiliates, and all those acting in concert with him, are enjoined from allowing “None of these candidates” to appear on voting ballots. [Defendant’s counsel]’s oral motion to stay pending appeal is denied. Written ruling of the Court will issue. Court adjourns.

(emphasis omitted).

The notices of appeal of the grant of the preliminary injunction were filed immediately thereafter, on August 24 and 25, 2012. The filing of these notices of appeal, consolidated by this court on August 28, 2012, divested the district court of jurisdiction over the preliminary injunction. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982); Davis v. United States, 667 F.2d 822 (9th Cir.1982) (filing of a notice of appeal generally divests the district court of jurisdiction over the matters appealed, although the district court may act to assist the court of appeals in the exercise of its judgment). We therefore have jurisdiction over these appeals from the district court’s August 22, 2012 and August 24, 2012 orders granting appellees’ motion for preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1).

Appellants’ emergency motions to stay the district court’s August 22, 2012 order pending appeal are granted. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

Appellant Ross Miller’s motion for leave to file an oversized emergency motion to stay the district court’s August 22, 2012 order is granted.

Appellees’ motion for leave to file an oversized opposition to appellants’ emergency motions to stay the district court’s August 22, 2012 order is granted.

The briefing schedule established previously shall remain in effect.