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Old March 18, 2012, 09:58 AM   #69
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,537
What would this final ruling be for? The state's appeal?
No. The final ruling is for the district court level only.

The State can still appeal to the 4th Circuit.

However, as tight as the ruling by Judge Legg, their appeal will be on very shaky ground. The 4th Circuit would have to overturn Masciandaro and Chester to overturn Woollard. Almost every pundit agrees with this, pro and anti alike.

Add to this, that a panel cannot overturn the decision of another panel. Only the en banc 4th Circuit could do this. I don't see this as happening, nor do many others, more clued-in than I.

Now, as to what may happen. In his response to the States question of clarification, Gura has made a very strong case for the Judge to impose an actual injunction. What we will see, in the next few days, is the States reply and how they will try and worm their way into dismissing the injunction. Ought to be entertaining!

Since the State has yet to file their notice of appeal (and they won't, until this matter of clarification is settled), a Stay cannot be given (even though they asked for one). So, until they file their notice of intent, I don't expect the Judge to give it much thought, other than to cite the applicable FRCP.

There's another thing at play here. The Memorandum of Opinion is a Declaratory Judgment. It declares that a single section of the code (5(ii)) to be unconstitutional. Alan Gura, in his response, has indicated that despite the State saying that they generally will obey the Judgment, they are currently operating as if the Judgment were not in force.

That is a very strong indicator that the Judge will issue a permanent injunction. Depends upon how far the Judge leans towards our "cause" and his own reaction to the State thumbing their noses at him.

Here's the thing. With a Declaratory Judgment, the State cannot be held in contempt. With an actual injunction, they can.
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