IL Attorney General Asking SCOTUS for Yet Another Extension

19 thoughts on “IL Attorney General Asking SCOTUS for Yet Another Extension”

1. The citizens should be demanding they stop extending the limit, the original time limit should have been enough!

   1. We can demand it, but the court has the power to do it whether any citizen demands anything or not. It’s their decision. You’re right about the time elapsed, of course–it is ridiculous–but they have the power to do it, and that’s the bottom line.

2. It is just a move to give left leaning communities time to pass their own AWBs and have them grandfathered in.

   1. I gotta wonder how well that’d stand up to a court challenge, if true.

      1. It’s an open question. The towns are mostly (I think all) trying to pass a “model legislation” sent to them by the Mayors’ Caucus. That model legislation is just a copy of Cook County’s ban. They’re being told that this is a “strong, Constitutional law” that has “withstood a court challenge.” But that court challenge is Wilson v. Cook County, and it’s far from over. From the Deerfield meeting, it seems clear that the mayors and council members involved don’t know what this law says or does.

         If they manage to pass the things, they may get shocks when we get to federal court.

         1. Didn’t a bunch of towns quietly repeal their ownership bans rather than defend them in the suit that eventually became the McDonald suit?

3. Now make sure to note that this isn’t an extension for the removal of the CCW ban, this is an extension on the deadline for filing an appeal.

   But yeah, this is just showing how much of a cluster IL politics is.

4. Nobody wired in in Chicago thinks Lisa Madigan got the AG gig because she’s a great (or even a marginally competent) lawyer. Her dad runs the Combine. (Look up John Kass, Chicago’s top columnist, for an explanation of that term). So it’s completely possible that this is mere incompetence, not some master plan. So far Madigan (Lisa, but also her dad Mike) is about zero for nine on this case. But nobody’s going to tell Mike his daughter is as dumb as a keg of nails. In Chicongo, you disappear for that.

5. This is interesting. They have already sought, and received, a 30 day extension on the time to file a Petition for Cert. And now, they are seeking an additional 30 day extension, until July 24, 2013. The brief is correct that the extension will have no impact on the court itself, since it is was originally due after the last court conference (where they decide which cases to accept) of this term, and which which takes place this Thursday (and in which, incidentally, I also have a petition pending). And, while it doesn’t deal with a Supreme Court Rule, I’ve had the chance this week to brief extensively under the Administrative Procedures Act the question SPECIFICALLY of what the meaning of the term Good Cause is (which appears in a couple of places, but which Congress has not defined).

   Here are the relevant current Supreme Court Rules. Analysis will follow in a reply to this comment.

   She specifically cites “28 U.S.C. § 210l(c) and Supreme Court Rules 13.5, 22, and 30.2”

   Here are what they state:

   28 U.S.C. § 2101. Supreme Court; time for appeal or certiorari; docketing; stay
   Any other appeal or any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.

   Rule 13. Review on Certiorari: Time for Petitioning
   5. For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.

   Rule 30. Computation and Extension of Time
   2. Whenever a Justice or the Clerk is empowered by law or these Rules to extend the time to file any document, an application seeking an extension shall be filed within the period sought to be extended. An application to extend the time to file a petition for a writ of certiorari or to file a jurisdictional statement must be filed at least 10 days before the specified final filing date as computed under these Rules; if filed less than 10 days before the final filing date, such application will not be granted except in the most extraordinary circumstances.

6. There are some States Attorney’s including where I live that are not prosecuting Unlawful use of Weapons and allowing non permitted concealed carry by valid F.O.I.D holders.So in some areas of the state we have constitutional carry happening.Madison,Peoria,Tazwell counties are doing this.Any others im am not aware of yet.

   1. That laudable of those State’s Attorneys, but I wouldn’t want to be the “test case” for that practice…

      1. Yeah… I was planning a post about how I wouldn’t count on any of these promises, but real life got in the way.

         1. McLean is now carry safe as well. You might get arrested but no prosecution. And I still think that if a cop arrests you using what is a known unconstitutional law, you should have a pretty damn good civil rights violation case.

7. So here’s the deal, I don’t know what they do. On the one hand, she clearly has the ability to get 60 days. And she’s right, as i stated, that it won’t impact the court because of the timing of their conference. But the court, if nothing else, is a stickler for rules. And justices DO NOT LIKE being played by lawyers. They get pissed off even. ESPECIALLY when they are lawyers on their on side.

   So, there’s two ways to look at this.

   First, the Supreme Court has been exceedingly clear about what is and is not “good cause”:

   Writs of certiorari in civil cases “shall be … applied for within ninety days” after entry of the subject judgment, 28 U.S.C. § 2101(c), which period may be extended by a Justice of this Court (up to an additional 60 days) “for good cause shown,” ibid. Under this Court’s Rule 20.6, requests for extensions of time “are not favored.” In this case, counsel has given no reason for his request other than his desire for additional time to research constitutional issues. The same reason could be adduced in virtually all cases. It does not meet the standard of “good cause shown” for the granting of a disfavored extension. Pursuant to the Rules of this Court, the application for extension is Denied.
   Kleem v. I.N.S., 479 U.S. 1308, 107 S. Ct. 484, 93 L. Ed. 2d 566 (1986)

   One cou.d, and I would, argue that the mere fact that a government employee feels overworked is hardly good cause for an additional delay. Especially when a delay, which is already STRONGLY disfavored was already undertaken and the AG provided no reason other than her workload to submit a petition on time. As the Scalia states: that is no different than the burden facing the other 49 state AGs at any time (not the millions of lawyers who are constantly facing a barrage of timelines).

   This position, is very consistent with what I saw doing research under the Administrative Procedures Act, where Good Cause is interpreted to exist not solely where the agency failed to act in a timely manner.

   when [government] creates time pressures upon itself as a result of its own lack of immediate action, such conduct further supports a finding that no good cause existed to depart from the standard rulemaking procedures. Texas Food Indus. Ass’n v. U.S. Dep’t of Agric., 842 F. Supp. 254, 260 (W.D. Tex. 1993)

   Instead, it needs to be somethign rare and pressing, that is a major change from normal, and would cause serious public policy repercussions (think, 9/11, if all of a sudden social security ran out of money, vaccines stopped being produced, China amassed an armada 20 miles off the coast of California, etc).

   In other words, good cause mean that if there is a serious LEGITIMATE emergency that exceptions can always be made. But only in the most extreme cases. And NEVER as a routine matter (which is what Illinois is seeking to do):

   Generally, this “good cause” exception to notice and comment rulemaking, is to be ‘narrowly construed and only reluctantly countenanced.’” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.Cir.1992)

   “It is an important safety valve to be used where delay would do real harm,” U.S. Steel Corp. v. U.S. E.P.A., 595 F.2d 207, 214 (5th Cir. 1979)

   No time for “comment in emergency situations,” Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981)

   delay from comment period “would result in serious damage to important interests, Nat’l Fed’n of Fed. Emp. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982)”

   And her underlying case is week. The idea that there is some terrible harm that would resulting from this, is hard to believe in light of both 1) the little impact carry has caused elsewhere and 2) the inability of Chicago’s notorious gun control laws to actually have any impact at all. Tough to argue things could get worse in Chicago.

   However, the court has granted her one extension and she is right that another will do little to the courts calendar if granted (since a decision wont be made regardless till October).

   What I really suspect though, is that Illinois is trying to work out some compromise and that the position they would take in this case will impact that one way or another, and they would prefer never to file the appeal at all. As a result, it is POSSIBLE they could grant the extension, but again the court hates to be played (especially by corrupt state governments) and so I suspect is likely to deny.

   But only time will tell.

   1. Hey Sebastian/Bitter, looks like I have an extra block quote in there. Can I go back and edit to make it look good and/or make sense? Or can you?

8. I rather fear the game is this:

   1. Ask for extra time on cert petition to take them past the original deadline set by the Seventh Circuit. (already granted)
   2. Ask Seventh Circuit to stay ruling, to give time to file Cert petition. (already granted)
   3. Ask for even more time on the Cert Petition, so that the Cert Petition can be filed when the Seventh Circuit stay is up.
   4. File appeal as the stay is about to expire.
   5. Cite this “crisis situation” and ask the Supreme Court to stay the Seventh Circuit’s order, pending its consideration of the Cert Petition.

   The Circuit Justice for the Seventh Circuit (who would hear that emergency motion) is Justice Kagan.

9. And they will get it. If they have to run this to the 2016 election they will and do so every single month.

   I guess they are doing this to make sure since they cannot ban guns in the state legislature that by the time the judge says no every township and village will of banned firearms in a more extreme way Chicago has.

10. I still think the governor will veto it, and it won’t come up for an override vote until the fall. In the meantime, Madigan makes this a campaign issue for her 2014 governor run. Chicago will be happy as they can pass may issue and the rest of the state goes constitutional carry except for other home rule communities that make similar Chicago style rules.

    Or, the governor signs this and Chicago is pissed. He only beat Brady by the Chicago margin. If he wants to win, he needs Chicago.

11. Pingback: Madigan’s Procrastination Rewarded….Again | My Blog

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