Tuesday, August 2, 2011


The Supreme Court has rules about procedure.  Rule 13 sets the timeline for filing a petition for a writ of certiorari, one of two methods of getting a case before the Court.  The other is by a direct appeal authorized by law, a right of appeal.  Rule 13 says that the party seeking review must file their petition within ninety days from the date of final judgment in the court below (either a state court of last resort or a United States court of appeals).

The Court of Appeals for the Ninth Circuit issued its opinion in USA v. Arizona, the SB 1070 case, on March 11th. That was not the trigger starting the clock running on the need to file for certiorari.  On June 29th the Ninth Circuit issued its mandate on their opinion.  That's when the clock began ticking.

The combination of the Arizona Republic and Phoenix's NBC affiliate KPNX (local channel 12) incorrectly reported the date by which the petition for certiorari needed to filed with the Court.  On May 9th AZCENTRAL.com, the website for the paper and station, reported that the petition needed to be filed by July 11th.  See, http://www.azcentral.com/news/election/azelections/articles/2011/05/09/20110509sb1070-appeal-arizona-next-step09-ON.html.

KVOA.com, Tucson's NBC affiliate, is reporting on their web page that former Solicitor General Paul D. Clement is the lead counsel for Arizona before the Court.  See, http://www.kvoa.com/news/federal-court-hears-arguments-regarding-arizona-s-counterclaim-in-sb-1070-case/.

Calculating days to determine when Clement must have the petition filed is governed by Rule 6 of the Federal Rules of Civil Procedure.  You don't count June 29th, but begin counting on June 30th.  You never count the date of final judgment. September 27th is a Tuesday, so there is no issue about the last day being a weekend day, nor is September 27th a holiday.

Mr. Clement has until 2:00 p.m. to get the petition for certiorari to the Court September 27th.  In these awkward post-911 days the Court has to have security scrutinize all of the fillings.  Here is how the Court says documents have to be filed:

A case-related document delivered in an open container or an open box to the police booth at the North Drive of the Supreme Court building by 2:00 p.m. on a day that the Court is open for business will be delivered to the Clerk's office by the close of business that day.  See, http://www.supremecourt.gov/deliveryofdocuments.aspx.

Generally, the Court hears and typically decides whether or not to grant certiorari within five days after the petition is filed during a regular term of the Court.  They can also re-list the petition on their calendar if they want the input from the Solicitor General.  Under the "Rule of Four" it takes the votes of four members of the Court to grant certiorari.

The next term of the Supreme Court begins Monday October 3rd. the first Conference will be held on the afternoon of Wednesday October 5th.  Stay tuned, the Court will post an order.  On the opening day of the term it is not uncommon for the  Court to issue summary disposition orders relating to certiorari.  We won't know whether the Court will grant certiorari or deny the petition until October.

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