                                                                 FILED
                            FOR PUBLICATION                      SEP 05 2012

                                                            MOLLY C. DWYER, CLERK
                 UNITED STATES COURT OF APPEALS              U .S. C O U R T OF APPE ALS




                         FOR THE NINTH CIRCUIT



WENDY TOWNLEY; AMY                     Nos. 12-16881, 12-16882
WHITLOCK; ASHLEY GUNSON;
HEATHER THOMAS; DAX WOOD;              D.C. No. 3:12-cv-00310-RCJ-
CASJA LINFORD; WESLEY                  WGC
TOWNLEY; JENNY RIEDL; TODD             District of Nevada,
DOUGAN; BRUCE WOODBURY;                Reno
JAMES W. DEGRAFFENREID,

           Plaintiffs - Appellees,     AMENDED ORDER

 v.

ROSS MILLER, Secretary of State of
Nevada,

           Defendant - Appellant,

 and

KINGSLEY EDWARDS,

           Intervenor-Defendant.

WENDY TOWNLEY; AMY
WHITLOCK; ASHLEY GUNSON;
HEATHER THOMAS; DAX WOOD;
CASJA LINFORD; WESLEY
TOWNLEY; JENNY RIEDL; TODD
DOUGAN; BRUCE WOODBURY;
JAMES W. DEGRAFFENREID,
               Plaintiffs - Appellees,

  v.

ROSS MILLER, Secretary of State of
Nevada,

               Defendant,

  and

KINGSLEY EDWARDS,

               Intervenor-Defendant -
Appellant.

                    Submitted to Motions Panel September 4, 2012

Before: REINHARDT, WARDLAW, and BEA, Circuit Judges.

        The order issued September 4, 2012 is hereby amended and this amended

order is designated for publication.

        Appellants Ross Miller, Nevada Secretary of State, and Kingsley Edwards, a

Nevada voter, appeal from the district court’s preliminary injunction order

enjoining Nevada’s nearly 37-year-old statute that requires a “None of These

Candidates” option on the ballot in statewide elections for state or federal office.

        The district court entered its preliminary injunction order, dated August 22,

2012, on August 24, 2012. The preliminary injunction order reads in part:




                                           2                                    12-16881
      [T]he Court grants [Docket Number] 15 Motion for Preliminary
      [I]njunction. Defendant Secretary of State Ross Miller, his agents,
      employees, affiliates, and all those acting in concert with him, are enjoined
      from allowing “None of these candidates” to appear on voting ballots.
      [Defendant’s counsel]’s oral motion to stay pending appeal is denied.
      Written ruling of the Court will issue. Court adjourns.

(emphasis omitted).

      The notices of appeal of the grant of the preliminary injunction were filed

immediately thereafter, on August 24 and 25, 2012. The filing of these notices of

appeal, consolidated by this court on August 28, 2012, divested the district court of

jurisdiction over the preliminary injunction. See Griggs v. Provident Consumer

Disc. Co., 459 U.S. 56 (1982); Davis v. United States, 667 F.2d 822 (9th Cir. 1982)

(filing of a notice of appeal generally divests the district court of jurisdiction over

the matters appealed, although the district court may act to assist the court of

appeals in the exercise of its judgment). We therefore have jurisdiction over these

appeals from the district court’s August 22, 2012 and August 24, 2012 orders

granting appellees’ motion for preliminary injunction pursuant to 28 U.S.C. §

1292(a)(1).

      Appellants’ emergency motions to stay the district court’s August 22, 2012

order pending appeal are granted. See Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008).



                                            3                                      12-16881
      Appellant Ross Miller’s motion for leave to file an oversized emergency

motion to stay the district court’s August 22, 2012 order is granted.

      Appellees’ motion for leave to file an oversized opposition to appellants’

emergency motions to stay the district court’s August 22, 2012 order is granted.

      The briefing schedule established previously shall remain in effect.




                                          4                                  12-16881
                                                                               FILED
                                                                                SEP 05 2012

                                                                            MOLLY C. DWYER, CLERK
                                                                             U .S. C O U R T OF APPE ALS




JUDGE REINHARDT, Concurring:

      I concur fully in this court’s order, including its determination that this court

has jurisdiction over the appeals from the district court’s preliminary injunction. I

write separately only to add that there is an alternative basis for our jurisdiction

over the appeals—a basis that would exist even if the district judge had not entered

his minute order issuing the preliminary injunction.

      Before doing so, however, I wish to make clear that the panel is in

agreement that the basis for our grant of the stay of the district court’s order

pursuant to Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), is that the

likelihood of success on the merits favors the state. Plaintiffs’ arguments offer an

inadequate basis for this court to conclude that Nevada’s 37-year-old statute

providing for “None of these candidates” ballots is contrary to the Constitution or

to any federal statute. A failure to stay forthwith any injunction issued by the

district court would accordingly result in irreparable injury to the State of Nevada

and its citizens, and would be directly contrary to the public interest.

      The parties have advised both this court and the district court that, in order

for Nevadans in the military to cast their ballots in the forthcoming Presidential


                                            5                                      12-16881
election, the complex process of printing the statewide ballots must be completed

no later than September 22, 2012, and that the printing of all such ballots must

begin by September 7, 2012. Although the district judge acknowledged his

awareness of these facts, he has deliberately attempted to avoid entering any order

that would allow an appeal before that date. His dilatory tactics appear to serve no

purpose other than to seek to prevent the state from taking an appeal of his decision

before it must print the ballots. As set forth below, these attempts to frustrate the

jurisdiction of the appellate court, and, necessarily, the Supreme Court—at least

until the issue in this case is mooted—itself constitutes a sufficient basis for our

exercise of jurisdiction.

      The district judge’s intent to evade appellate review is plain from the record.

Indeed, the district judge essentially admitted as much, as evidenced by the

transcript of the hearing held August 22, 2012, regarding the motion for

preliminary injunction. At that hearing, counsel for the state requested that the

district judge rule in time to permit an appeal to the Ninth Circuit before the ballot

deadline; the district judge, however, displayed no interest in Defendants’ ability to

appeal:




                                           6                                     12-16881
      MR. BENSON: Well, we have a problem in the procedural sense in

      that if we -- in order to get to the Ninth Circuit between now and

      September 7th --

      THE COURT: Well, that's your problem. I’m just trying to

      accommodate your problem with regard to notifying the printer.




Although the district judge’s response was entirely out of keeping with the

importance and time sensitiveness of this case, it, alone, would not suffice to

evidence deliberate delay.

      The court’s comment, however, followed numerous and substantial delays

caused by the district judge, which, in the face of efforts by both parties to expedite

consideration of the matter,1 can only be explained as a deliberate attempt to evade

review by higher courts. For example, when the district judge who had originally

been assigned to this case withdrew from the case on June 11, 2012, the current

district judge as Chief Judge took until July 3, 2012, to reassign the case—and,

when he did so, he reassigned it to himself. The resultant delay had the prejudicial


1
 Plaintiffs specifically requested expedited treatment of the preliminary injunction,
marking their motion “EXPEDITED TREATMENT REQUESTED.” The parties
also filed a request for an expedited briefing schedule. They further explained the
importance of an expeditious ruling during the oral hearing on the preliminary
injunction motion.

                                           7                                      12-16881
effect of rendering moot the parties’ request for expedited briefing. Further, the

district judge then waited almost three weeks, until July 20, 2012, to even schedule

a hearing on the preliminary injunction. The date he eventually chose—August 22,

2012—resulted in another month-long delay in the resolution of this proceeding.

      At the August 22, 2012, hearing, the parties once again urged the court to

issue its ruling as soon as possible; in response, the district judge assured the

parties that he would rule quickly:

      MR. BENSON: With regard to preparing the order and all of that, we

      have a ballot deadline, printing deadline coming up very quickly.

      THE COURT: That’s why I’m announcing this orally now.




      MR. BENSON: I appreciate that, your Honor.

      THE COURT: Even though I would like more time to study it, but --

      MR. BENSON: And with regard to the written order, my

      understanding is that an appeal cannot be taken until a written order is

      put in the record so --

      THE COURT: Right. I’ll try to do that as quickly as I can.




                                           8                                        12-16881
As set forth in the district judge’s recent order in response to the notices of appeal,

however, the district judge has so far refused to issue a fully-reasoned explanation

for his preliminary injunction (a precondition, under his view, for appellate

review). Despite his promise to rule “quickly,” more than a month has passed since

the completion of briefing on that issue—and 13 days have passed since the

August 22 hearing—without such a reasoned ruling. It is now three work days

before the printing of ballots must commence, and the district judge has exhibited

no signs of issuing the written explanation that he believes is essential for appellate

review.

      The district judge was fully aware that his efforts might affect this court’s

jurisdiction and that Defendants were seeking appellate review of his decision.

Indeed, his recent post-appeal order notes the notices of appeal filed by the parties,

and describes them as “premature.” In any event, his awareness did not put an end

to his attempts to evade appellate review. When the appeals were filed, he

immediately sought to frustrate our ability to entertain a stay pending appeal,

denying that he had issued an order but scheduling a hearing on whether he should

grant a stay of that order for September 14, 2012—fully a week after the state’s

deadline for printing the ballots—a hearing that he deemed a precondition to this




                                           9                                      12-16881
court’s “entertainment” of a stay motion.2 This last action by the district judge is

particularly egregious in light of the fact that he swiftly denied oral motions for the

precise same stay (made by both sets of Defendants) during the August 22, 2012,

hearing.3

      In circumstances such as these, when a district judge’s actions might serve to

deprive the appellate court of meaningful judicial review, an appellate court has the

authority to exercise jurisdiction in aid of its own appellate jurisdiction. This is so



2
 Before requesting a stay from this court, the parties are required either to request
one from the district court or demonstrate why seeking such a stay would be
impracticable. See Fed. R. App. P. 8(a). Here, both apply.
3
 The district judge was presented with two such motions for a stay during the
August 22, 2012, hearing, and denied them both times without equivocation. The
first time was upon motion of the state:

      THE COURT: But the reason I’m announcing this orally is so that
      you’re forewarned with regard to the printing problem.
      MR. BENSON: And, finally, with regard to that, I must take an oral
      motion that the Court stay its order pending appeal. We do intend to
      take an appeal.
      THE COURT: I’ll deny that.
      MR. BENSON: Thank you, your Honor.
      THE COURT: So you have it for the record.

Later, in response to a motion by Defendant-Intervenor, the court again denied the
stay, stating, “I’ll deny that for the record so that you can ask the appellate court
for a stay” (emphasis added). Indeed, the district court’s orders on this point are so
contradictory that the state today filed a motion with the district court to clarify the
precise state of the record regarding both the preliminary injunction and the stay.

                                           10                                     12-16881
even if an appeal has not yet been properly perfected. In FTC v. Dean Foods, Co.,

for example, the Supreme Court upheld the court of appeals’s authority to grant a

preliminary injunction preventing a merger that would moot any subsequent

appeal. 384 U.S. 597, 603-05 (1966). The Court noted that, “where an appeal is not

then pending but may be later perfected,” an appellate court may exercise

jurisdiction when doing so would be necessary to preserve its later appellate

jurisdiction. Id. at 603. The ability of appellate tribunals to act to preserve their

jurisdiction is a necessary element of appellate review; “[o]therwise the appellate

jurisdiction could be defeated . . . by unauthorized action of the district court

obstructing the appeal.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943)

(emphasis added); see also California Energy Comm’n v. Johnson, 767 F.2d 631,

634 (9th Cir. 1985) (reiterating this principle but declining to exercise such

jurisdiction).

       When a decision on our part is necessary in order to permit the losing party

below to obtain review by our court and the Supreme Court, we have the ability to

act in order to preserve the jurisdiction of the appellate courts. In this case, that

authority would permit us to decide the stay motion before us, even if the district

court had not issued the injunction on August 24. Refusal to exercise our

jurisdiction would frustrate not only our appellate authority, but also that of the


                                            11                                      12-16881
Supreme Court, and would allow the district court to erroneously invalidate

Nevada’s long-standing election process and to deprive its citizens of their right to

participate in Presidential elections in the manner that the law prescribes. Such

arrogance and assumption of power by one individual is not acceptable in our

judicial system.

       I therefore wholeheartedly concur in the panel’s decision to grant the stay.4




4
 In any event, if the district court were to succeed temporarily in blocking appellate
jurisdiction as a result of its contention that it has not issued an injunction, the state
would be free to commence printing the ballots immediately. Any subsequent
attempt to disrupt that printing would be subject to an immediate stay as the
weighing of the Winter factors would favor the state even more strongly.


                                            12                                     12-16881
                                  Counsel Listing

K. Kevin Benson, Carson City, Nevada, filed the motion for stay of the district
court’s order for appellant-defendant Ross Miller, Secretary of State of Nevada.
Catherine Cortez Masto, Nevada Attorney General, was also on the motion.

John Pablo Parris, Las Vegas, Nevada, filed the motion for stay of the district
court’s order for appellant-intervenor-defendant Kingsley Edwards.

Paul Swenson Prior, Las Vegas, Nevada, opposed the motion for stay of the district
court’s order for plaintiffs-appellees Wendy Townley, Amy Whitlock, Ashley
Gunson, Heather Thomas, Dax Wood, Casja Linford, Wesley Townley, Jenny
Riedl, Todd Dougan, Bruce Woodbury, and James W. Degraffenreid.




                                         13                                   12-16881
