Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.
[UPDATE @ 7P: READ Metro Weekly's report on today's filing, "Prop 8 Proponents: Ninth Circuit Was Wrong, Should Reconsider Case."]
Although Cooper, of Cooper and Kirk PLLC, told Metro Weekly the filing has not yet been made, the filing is expected later today as today is the deadline for the filing to seek en banc review.
The move almost guarantees that the U.S. Supreme Court will not consider the case before this November's presidential election.
Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit -- due to the more than 20 active judges on the circuit -- has adopted a unique "limited en banc" procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given but only 11 judges hear the en banc consideration. That will be the request made by today's filing by the proponents.
If a majority of the court's judges support en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.
After that decision is reached, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the entire panel of Ninth Circuit judges to review the en banc panel's decision, but the court has not agreed to do so since adopting the "limited en banc" procedure.
After en banc consideration, the unsuccessful party could then petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.