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San Francisco asks Ninth Circuit for advance notice regarding Prop 8 decision mandate

9th Circuit Court of Appeals Prop 8 trial Supreme Court

By Jacob Combs

Yesterday, Therese Stewart, San Francisco’s Deputy City Attorney, wrote a letter to the Ninth Circuit asking for advance notice “if and when the mandate will be issued in the event the United States Supreme Court denies certiorari in the Perry case.”  This involves a bit of legal intricacy, but essentially the issue is this: if the Supreme Court decides not to hear the appeal of the Ninth Circuit’s decision of the Prop 8 case, the Ninth Circuit’s ruling becomes the final legal say on the matter.  But the circuit court’s ruling doesn’t go into effect the very instant the Supreme Court issues its order denying certiorari in the case; rather, the high court essentially returns the case to the Ninth Circuit for final dispensation in the case.  The circuit court must then issue what is called a ‘mandate,’ or a formal declaration that its decision should go into effect.  (The ruling is currently stayed ‘pending issuance of the mandate.’)

In Stewart’s letter, she outlines two reasons for the City’s request:

“As the Court is aware, this case has generated extremely wide interest.  In prior instances when decisions were issued in this and other cases relating to marriage for same-sex couples, there have been large gatherings, including protestors, in the Civic Center area of San Francisco…. To ensure the health and safety of San Francisco’s residents and visitors, the San Francisco Police Department would be grateful if the Court could provide advance notice of its intention to issue its mandate in this case so that the Department can plan for and deploy an adequate number of officers to the areas where protests are likely to occur.

“Equally important, if the Supreme Court denies certiorari and the Ninth Circuit and the Ninth Circuit issues the mandate, the City anticipates there will be immediate and substantial demand from same-sex couples for marriage licenses and ceremonies…. The logistical efforts the City undertook to accommodate the couples as promptly and seamlessly as possible were substantial.”

Naturally, if the Supreme Court does deny certiorari in the Prop 8 case next week, the first question for everybody will be when same-sex couples can wed again in California.  In the past, the Ninth Circuit has provided advance notice to the media and the public before issuing its decisions, so it looks like there’s a good chance it will grant Stewart’s request to ensure the end of Prop 8 goes smoothly.

Thanks as always to Kathleen for the full letter below, via Scribd.

[scribd id=114688486 key=key-2eo6lia3xcjiusmqshra mode=scroll]


  • 1. Gregory in SLC  |  November 28, 2012 at 8:37 am

    Hoping to be sending flowers to SF soon!

    from 2004….SAN FRANCISCO / A documentary in full bloom / Tribute to gay wedding gift phenomenon:

  • 2. Reformed  |  November 28, 2012 at 10:49 am

    Discrimination's last dying gasp will evidently be linked to the pace of official paperwork and a communities need for advance notice, hmmmmmm. Oh thats just being picky, take all the time you need. It will, after all, be a one time deal. But please try to include the weekend after the decision in the equal rights era, after all, it is the weekend.

  • 3. Bob  |  November 28, 2012 at 2:41 pm

    i will (hopefully) be in the Bay Area when the marriage equality announcement is released.

  • 4. Bill S.  |  November 28, 2012 at 3:42 pm

    The Supreme Court decision on cert is coming at 9:30AM on Monday. Is there any chance that the mandate would issue in a matter of hours? Isn't it really a matter of the two judges in the majority on the 9th Circuit panel signing a one-sentence order?

  • 5. Kathleen  |  November 29, 2012 at 8:38 am

    As a practical matter, the mandate could issue almost immediately after the order comes out (with allowance for time zone differences), but I expect the 9th Circuit will grant SF's request. So a more likely scenario is that IF cert denied, then the 9th Circuit would hold off for at least 24 hours to give SF the advance notice it asks for.

  • 6. Shannon  |  November 29, 2012 at 4:00 am

    Wouldn't the public reaction (protest, celebration, etc.) come shortly after the NEWS arrives with the supreme court announcement (expected on Monday) rather than after the district court issues its mandate? The mandate could come hours, days, or weeks later.

  • 7. Kathleen  |  November 29, 2012 at 8:40 am

    That's true, but there's nothing SF can do to get advance notice of the news out of SCOTUS. It can, however, have some time to prepare for the actual issuance of licenses and commencement of marriages, so I imagine they're trying to get any notice they can.

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