Wendy Townley v. Ross Miller

*1042 ORDER

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:

(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 , 103 S.Ct. 400 , 74 L.Ed.2d 225 (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…

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 , 129 S.Ct. 365 , 172 L.Ed.2d 249 (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 *1043 Nevada and its citizens, and would be directly contrary to the public interest.

The parties have advised both…

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 No. 12-16881

WHITLOCK; ASHLEY GUNSON;

HEATHER THOMAS; DAX WOOD; D.C. No. 3:12-cv-00310-RCJ-

CASJA LINFORD; WESLEY WGC

TOWNLEY; JENNY RIEDL; TODD

DOUGAN; BRUCE WOODBURY;

JAMES W. DEGRAFFENREID, AMENDED ORDER

Plaintiffs - Appellees,

v.

ROSS MILLER, Secretary of State of Nevada,

Defendant - Appellant,

and

KINGSLEY EDWARDS,

Intervenor-Defendant.

WENDY TOWNLEY; AMY No. 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

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…