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Old April 22, 2012, 12:22 PM   #102
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
As I noted in my last post, if the State cannot show to the satisfaction of Judge Legg that they have a chance to win at appeals, then the temporary stay will be canceled and the injunction will be in full force.

At that point, the State will have the option to make a motion to the 4th Circuit for a stay. The Motions Panel will then take a good hard look at the reasoning Judge Legg used in making his decision not to allow a stay.

A couple of things are happening here.

Despite whatever feelings we may have, it is a truism that the Federal Courts really do not like to overturn State laws. So when they do overturn a State law, as a general rule, they make the most reasonable arguments they can, so as not to be overturned on appeals. Appeals Courts operate the same way.

So a judges opinion has to be pretty much airtight to survive the appeals. I feel, as do most scholars (both pro and anti), that Judge Legg has done this. Maryland has been handed a decision that leaves virtually no wiggle room.

Yet because the Courts are loath to overturn State regulatory laws, a stay in the judgment is almost a given. This is exactly why Judge Legg is now conducting briefings on the matter of a stay.

After the briefings are concluded, the Judge will weigh the evidence before him and arrive at a decision to make the stay permanent while under appeal or lift the temporary stay and place the injunction in full force.

Should the Defendant State of Maryland Motion for a Stay at the Circuit, then the Motions Panel will do much the same thing. The only difference here will be Judge Leggs opinion on the stay. They will give it more weight, particularly if it is well reasoned, as to law.

But this is all a separate process from the actual appeals. That (process) will go forward regardless of what the Motions Panel does.

The appeals process started the moment that Judge Legg issued his order of clarification and imposed an injunction against MD applying 5(ii) in processing wear and carry permits. That is evidenced by the fact that MD immediately filed their appeal (the order was delivered on Fri. Mar. 30th and the notice of appeal was filed on Mon. Apr. 2nd, the 4th Circuit noticed the docketing of the appeal on Fri. Apr. 6th).

By the time that Judge Legg files his decision on the Motion to Stay, it will be June or even July. The appeals will have set the briefing schedule by then.

There will be no delaying tactics (extensions for time to file) by the State. Most especially if Judge Legg rules against them and the State Motions to Stay at the Circuit. It is not just bad form, it would indicate to the Motions Panel that the State is not sincere in its belief of harm (remembering that this is one of the criteria for the stay).

Sorry to be so long winded, Dan. There just isn't a short way of describing what is actually going on at this point in time.

Next post, What happens to the permit applications.
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