Yesterday I accused state Attorney General Rob McKenna of negligently putting the legitimacy of our entire 2008 election at risk—an assessment, I’ve been advised, that may have been too harsh… given that Secretary of State Sam Reed, perhaps, may in fact be equally culpable.
Perhaps. But first a little background on the case itself, and the legal rules at play.
As has been explained to me by actual attorneys, the Federal Rules of Civil Procedure clearly state that an injunction issued by a district court is not automatically stayed upon successful appeal; in fact, the rules require that a party with standing must explicitly request the district court (or the Circuit Court of Appeals) to dispose of or modify the injunction. And as has been previously noted, since the state has yet to ask either court to stay or modify the permanent injunction barring implementation of the top two primary, the existing court order remains legally in force.
So why, after an apparent victory before the Supreme Court, did state attorneys not take the obvious step of asking the lower courts to modify the existing injunction so as to allow Sec. Reed’s headlong implementation of the top two primary? Why not attempt to clear this up at the outset, when they could?
As I suggested in my previous post, it could have just been a monumental mistake: either McKenna simply forgot there was an injunction, or given his utter lack of prior courtroom experience, he just doesn’t quite get how these oh so technical court order thingies work. And, well, either explanation would be pretty damn embarrassing.
Or… perhaps state attorneys intentionally failed to ask the court to modify the injunction… because they were afraid it wouldn’t?
Attorneys familiar with the case have pointed out that both Judge Zilly and the 9th Circuit have expressly noted in their opinions that their rulings were not based on all the issues before them, a position echoed by the Supreme Court, which merely ruled on the facial aspect of the appeal while remanding the other issues back to the lower courts. Just because the Supremes rejected the single basis on which the injunction was initially granted, doesn’t mean there aren’t other grounds to support one, and as Judge Zilly expressly indicated in this week’s order, the case, as far as he is concerned, is still pending, barring a mandate from the 9th Circuit to dispose of it.
The Seattle Times editorial board’s absolute confidence notwithstanding, the appeal has clearly yet to run its legal course, and even if the courts were to decide to modify the injunction, that does not necessarily mean it simply goes away. The existing permanent injunction was issued in place of a requested preliminary injunction, and had a stay been requested the court might very well have decided to replace the former with the latter, at least for the time being.
So if McKenna and Reed were really convinced this case was over, as they publicly stated at the time, the question reporters should be asking them is, why didn’t they just dot their i’s and cross their t’s by asking Judge Zilly to modify his injunction way back in March? Was this an inexcusable legal brain-fart, as I first suggested? Or, was it perhaps a calculated legal bluff intended to force implementation of a top two primary in 2008, in willful violation of a standing court order?
I’m not sure which is the more disturbing scenario: that our Attorney General doesn’t understand the legal basics of court orders… or that he and the Secretary of State have so little respect for them? But then, that’s the sort of extralegal gamesmanship we’ve come to expect from Republicans in the Age of Bush, so no wonder our local media seem so uncurious about the circumstances that have led us to the precipice of an electoral disaster. You’d think some journalist might ask our AG—the guy they keep pumping up as the good Republican—why he never bothered to ask the court to lift the injunction, but then like McKenna and Reed, perhaps our press too is afraid of the answer they might get?
This is not, as the editorialists would have you believe, a question of whether the top two is good policy, or whether the voters deserve to get the primary system they approved by initiative, or even whether the Secretary of State might ultimately prevail in court. This is a question of the rule of law, and why our state Attorney General and Secretary of State are unable or unwilling to following it. The questions reporters should be asking Rob McKenna are why did you fail to request a stay and what was the legal advice you gave Sam Reed? And they should keep asking those questions until “Mr. Sunshine” gives them a straight answer, attorney-client privilege be damned.
If indeed this was a legal gamble rather than a catastrophic blunder, my guess is that the bluff will ultimately pay off, as it’s nearly impossible to scrap the top two at this late stage, and I can’t imagine the court being willing to allow this election to fall into legal limbo. But who knows? McKenna and Reed have just publicly dissed a federal judge, arrogantly dismissing a valid court order as a mere “technicality,” and if I were Zilly it would be hard to resist the urge to allow McKenna and Reed to wallow in the dire consequences of their own ignorance of and/or disrespect for the law.
It doesn’t appear to make sense for McKenna to risk throwing the election into legal limbo (which I presume could well result in it being delayed or rerun at a later date) UNLESS he’s afraid that in the present situation, he and his party leadership are worried about losing.
Goldy:
Knowing that Mr. McKenna is “rather partisan” (and Death Valley is “rather warm”) you may have a point here.
It’s no secret that you and I disagree about the top two primary, but it’s also no secret that one of the few things that the leadership of both state parties agree on is an absolute hatred of the top two system.
The Attorney General’s office has missed the mark on several things recently, while using the issues involved to bolster his image with various groups.
So, he can look like the “champion of the people”, while fouling up implementation of the top two primary.
(I’d point to the new distressed property law as another example. The thing was changed in committee, and nobody seems to have actually read the thing until after it was passed. Yes, the legislature mucked it up, but he certainly didn’t help.)
It’s his responsibility to act as legal counsel to the Governor, the legislature and various state agencies. If they ignore his advice, then perhaps he’s off the hook, but if this guy were my lawyer, he’d be fired.
Oh, wait. As a citizen of the State of Washington, he is my lawyer. And he’s up for reelection.
http://www.ladenburg.org/
I haven’t always agreed with Mr. Ladenburg as Pierce County Executive, but for the most part, he’s done a decent job, and it’ll be nice to get someone from Pierce County in the state government, just so you folks up north don’t forget that you aren’t the whole state.
(Hey, no worries. We love you folks up there in KC, and it’s good to have you so close. Just last week someone told me to put my opinion “where the sun never shines”. This blog is based in Seattle, isn’t it?)
Perhaps Mr. Cynical learned how to time the stock market (and bank stocks*) by predicting litigation outcomes.
[pause]
[raucous rabbit laughter in background]
HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR HAR
* For those of you who haven’t been following it, Mr. C has lost almost $7,500 on WFC since June 27.
“It’s his responsibility to act as legal counsel to the Governor,”
Which, under the present circumstances, is a conflict of interest. Rather it would be, except she’s ten times the lawyer he could ever hope to be, and knows full well any “advice” from him would be as useless as side pockets on a sow.
On the other hand, what’s worrisome is that it’s also his responsibility to represent the legal interests of the state and its governor, which he has plenty of incentive to do badly.
One thing’s for sure — if the injunction isn’t dissolved, the battle over the form of Washington’s primary is far from over. If the top-two proceeds while there’s still a federal injunction, there will surely be legitimate claims of damages incurred by some candidates.
Since (as I understand it), the principal reason for the SCOTUS ruling was the absence of demonstrable damage, the underlying questions in this entire mess haven’t yet been addressed. With legitimate claims in place, the actual case can be argued and the clear precedent from California will apply.
If the federal courts have even the slightest iota of logic and common sense, Sam Reed’s wet-dream will finally be crushed once and for all.
3 Mr. C also claimed to be a “working farmer” in another thread yesterday.
Hey, I’d like to know how the price of number 1 diesel is affecting his business these days? Maybe he’s considering switching to oxen or mules. Also, it’d be tempting to ask how many people he has working for him who hable espanol, and whether he happened to check their papers. Hmmm….?
Goldy you dumb ass, it is not for McKenna or the state to “ask” the Court to do anything. The case has been remanded back down, that is what generated the bullshit the both parties are jumping on now.
If they had a leg to stand on they would get the injunction enforced. Unlike you…they have read the language of the decision and know they have no chance to do shit.
The parties will need to go through at least one election cycle or more to “show” the harm a top two primary is causing for them as per the language of the SUPREME COURT.
Your speculation on this shows your mental instability that is often displayed in your Darcy Burner stalking. How sad you support such a homely, stupid, wreckless driving, arsonist.
Based on your ananlysis of this legal matter I now understand how she appears “smart” to you.
RC @ 7: Obviously, you don’t understand the meaning of the term “remand”, when applied to appellate litigation. It simply means that the case is back under the control of the trial judge, to be handled in a manner consistent with the appellate court opinion. If they wanted to, the parties could have made any motion they want to make the day after the Supreme Court decision, with a hearing on that motion at a time scheduled for the convenience of the court.
Personally, I’m beginning to wonder if they want to keep an election challenge available as “Plan B” for Rossi. After he loses, he can call for another “do-over”, like he tried to do last time.
McKenna’s supposed error is way more of a technicality than a real problem. If the injunction was not implicitly reversed by reversing the Ninth Circuit’s affirmance of the injunction, it plainly has to be vacated now. The AG simply has to ask for it and it will be vacated. The parties’ fight against the top-two is over for now. Their only remaining arguments would have to go back for trial and it’s highly unlikely they’ll go anywhere.
@10 Hmm, perhaps one of us should change our screen name in order to avoid confusion. I’ve only been here three or four months. Have you been around here longer than that? If so, I should probably be the one to change names.
Steve @ 10
Are you asking yourself when you ask “@10” that question?
surreal @7,
Are you an attorney? Did you consult appellate attorneys before writing your comment? Obviously not, judging from what you wrote.
There is no automatic stay of the injunction, regardless of the Supreme Court’s ruling. Thus the court order stands until McKenna requests a stay or modification… and even then the court may not lift it entirely. That’s the way the system works.
Now if I’ve explained something wrong, and a qualified attorney wants to correct me, that’s fine. But don’t make a dumbass out of yourself by calling me a dumbass when you have no idea what you’re talking about.
@11 Oops, I meant to address the other Steve @9.
Steve
It was funny, though a bit unsettling.
7
Yeah, surreal, who are you calling a dumbass, dumbass?
rhp6033 @ 8
The U.S. Supreme Court actually remanded the case to the Ninth Circuit, not to Judge Zilly. The Supreme Court simply reversed the Ninth Circuit decision affirming Judge Zilly’s permanent injunction. The case is still on appeal in the Ninth Circuit.
The Ninth Circuit must now re-decide the appeal, following the law laid down by the Supreme Court in the one legal issue presented in the writ of certiorari on which the State of Washington appealed to the Supreme Court. The political parties have argued several other legal issues on which they contend that the permanent injunction should be upheld on appeal.
So the case is under the control of the Ninth Circuit, not Judge Zilly. The only power that Judge Zilly has right now is to either issue a stay enforcement of the injunction pending appeal, or to actually enforce the injunction (for example, contempt proceedings). If Judge Zilly is asked for a stay, and denies (or grants) the stay, then the Ninth Circuit can then address the stay decision.
Richard @16,
And to add on to Richard’s explanation, the state could request a stay directly from the 9th Circuit, but the standard route is to go through the District court first.
But the point remains, for now the injunction stands, and the state has yet to request a stay.
It seems that the republicans are only interested in AG mistakes if made by a Democratic AG. Republican hypocrite spotting number 182,298,123!
PMJI
The stupidest thing the dems can do now is go after McKenna on this. I can see it now:
The great majority of Wastate voters is more loyal to their local candydate than to her party. In part thsi si because both parties have engaged in character attacks on the other party. In the case of Repricans, this means claimng the Dimocrumbs use their power to dominate the system.
Logic seems to suggest that the Court decision will strengthn the Dems. What effin advantages is their in crucifying McKenna<
I’ve done plenty of appeals, and you don’t know what you’re talking about. Stays here are irrelevant; the AG didn’t get one while the appeal was pending. The question now is simply whether the reversal of the underlying order on (un)constitutionality implicitly also reversed the injunction that was based on that now-reversed order, or whether the injunction needs to be specifically vacated, which I would do if I were McKenna. This is hardly a big deal. Any other arguments such as the as-applied and trademark arguments would need some factfinding, i.e., a trial. A don’t see how, in light of the Supreme Court’s decision, a lower court would grant a new preliminary injunction pending that final decision.
@21 Hmm, too many guys named Steve around here.
RP @ 16: I stand corrected.
Goldy you dumb ass. Richard (your lawyer) even backs up what I said in my post. The case has been remanded down. I thought you knew the hierarchy of the courts, that means back to the ninth circuit.
The best explanation comes from Steve spews @20. Look at the language of the ruling and then ask yourself if the injunction would still be valid.
This is not some conspiracy to help Dino. If the injunction were still in effect the Dems and the Republicans would be pushing forward to enforce the injunction and not just saber rattling.
Goldy go back to work….oops…I forgot you don’t have a job, how insensitive.
surreal @23,
Whoever said anything about this being a conspiracy to help Dino? I’ve suggested that either McKenna fucked up, failing to ask for a stay when he should have, or deliberately failed to ask for a stay out of concern he might be rejected.
The fact remains, the injunction is still in force, and the state is still barred from conducting a top two primary, and it borders on malpractice for the AG and the SOS to have embarked on this process without settling this very basic issue. Perhaps all it would take is for McKenna to request a stay… well why hasn’t he?!
Note – the AG has finally sent an official response to the misguided meanderings of Goldy, his puppeteer D. Pelz and others and it is pretty straighforward.
http://www.secstate.wa.gov/_as.....arties.pdf
That response doesn’t even make sense. All it says is that a stay could be granted.
The question is: Why the hell hasn’t this inexperienced AG done this already?
What a rookie.
If the matter is now in front of the 9th Circuit, then getting a motion in front of a three-judge panel staying the injunction is going to be difficult, in the limited time available.
Goldy,
See @8 “plan B”
See directly from the Supreme Court order
“…respondents obtained a permanent injunction against the enforcement of I-872. The First Amendment does not require this extraordinary or precipitous nullification of the will of the people.”
That is the portion of the ORDER that deals with the injunction. Stop trying to create bullshit drama that does not exist. Dumbass
Do what you do best, stalk Darcy “the” Burner.
This is truly odd. What part of “reversed” is hard to understand. The case was brought by the parties, they need to file for a new injunction, and they have to muster a theory that the Supreme Court hasn’t rejected.
The primary is around the corner and it will be a top two. I don’t see any mistakes here. Wishful thinking, only.
Jacob @26: The AG’s position is that the stay was terminated when the Supreme Court said “The judgment of the Court of Appeals is reversed. It is so ordered.”
Therefore, the AG thinks no further action to stay or vacate the injunction is required. Likely they are correct.
Bobalieu @ 30
The U.S. Supreme Court reversed the judgment of the Court of Appeals, not the judgment of the District Court.
The Court of Appeals affirmed the District Court judgment, considering only the issue of whether it was violation of 1st amendment rights of political parties to allow candidates to use the party’s name on the ballot without the party’s permission. The Court of Appeals said that it was unconstitutional, while the Supreme Court said it was not unconstitutional.
The political parties presented other reasons to the District Court and Court of Appeals as to why the “Top Two” primary law was unconstitutional. The Court of Appeals did not decide these issues, since it was sufficient to rule only on the 1st amendment position in the above paragraph in striking down the law.
Now that the Supreme Court reversed the Court of Appeals and said that its legal reasoning was incorrect, the Court of Appeals will now have to decide the appeal based upon the other reasons given by the political parties for striking down the law.
In the meantime, the District Court order — i.e. the “Permanent Injunction” — remains in effect. The appeal is still pending and has not yet been decided by the Court of Appeals (due to the Supreme Court reversal).
In any event, the most amusing thing about all this is how the state REPUBLICAN PARTY is insisting with extreme vociferousness that the “Permanent Injunction” is still valid and the “Top Two” primary should not be held.
Look at the legal documents on the Secretary of State website regarding the “Top Two” primary, at the very bottom of the list, in the very bottom of the last section entitled “Court Documents after the U.S. Supreme Court Ruling”:
http://www.secstate.wa.gov/elections/toptwo.aspx
You will see “Letter from Republicans to AG’s Office RE Ninth Circuit Order”, dated July 7, 2008, and “Letter from Republicans to Prosecuting Attorneys”, dated July 8, 2008. The two letters from the Republican Party attorney are much more assertive than the single letter from the Democratic Party attorney.
I can certainly understand why the state Democratic Party would want to push this issue. Rob McKenna and Sam Reed are both Republicans, and they are up for re-election this year.
But why in the hell would the state REPUBLICAN PARTY be so outspoken as to basically say that their “top two” state office holders (pun intended) are stupid morons who failed to consider the court order already in place, who are fixing to intentionally violate the “Permanent Injunction”, and screw-up the August 19, 2008 primary for all the voters and candidates of Washington?
Especially given the CLOSE PERSONAL relationship of state Republican Party Chair Luke Esser with Rob McKenna …
Richard @31: I was merely trying to state the AG’s position a bit more succinctly than the mass of words used by the AG, for the benefit of folks like Jacob who thought the AG letter “didn’t make sense.” I’m not a civil procedure expert by any means. But I do note rather a dearth of authority cited by either of the political parties, whereas the AG at least supports their position with argument and citation.
Jesus Christ Pope, you are sounding as unhinged as when you filed that bullshit case against Costco. The Court spoke directly to the permanent injunction, read the decision.
You are fixating on minutia that is insignificant as a matter of law and procedure.
I will repeat since you do not seem to understand. If the parties had a valid injunction they could enforce that injunction by bringing a motion with the Ninth or the District Court. The bottom line is the LANGUAGE of the decision from the Supreme Court wiped out the injunction. Are you a fucking retard?
Goldy,
Time to do what you ask so many others to do….take the high road here and admit to your error.
You can’t be right 100% of the time (no one is), here’s a chance to show some integrity and admit this is one of those times that proves no one is 100% right.
Dang – the silence is deafening from Goldie and his anti-top two cronies. AG got your tongue.
Richard Pope is easier to ignore than to deal with – he is looking for justification for his tired baseless way of thinking and just keeps getting creepier by the moment. It’s done – you lost – crawl under a rock Pope – you are a failure and all the BS you put forward like the Cosco case, running as a D or R and just plain stack of mental masturbation you have spewed here shows that you are a useless rube!