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US SUPREME COURT TAKES EXTRAORDINARY ACTION IN NJ CITIZEN SUIT CHALLENGING '08 PRESIDENTIAL ELECTION

By Leo Donofrio, Esq.

US SUPREME COURT TAKES EXTRAORDINARY EXPEDITED ACTION IN FAST TRACKING NJ CITIZEN SUIT CHALLENGING '08 PRESIDENTIAL ELECTION.

I am awaiting clarification from the Clerk's office at the United States Supreme Court as to whether my stay application has now been accepted in lieu of a more formal full petition for certiorari (and/or mandamus or prohibition).  Such a transformation is a rare and significant emergency procedure.  It was used in Bush v. Gore, a case I have relied on in my brief.  

We do know the case has certainly been "DISTRIBUTED for Conference", a process usually reserved for full petitions of certiorari.  Stays are usually dealt with in a different manner.  As to a stay application, a single Justice may; a) deny the stay; b) grant the stay; c) refer the stay to the full Court.  

My stay application was originally denied by Justice Souter.  So, under Rule 22.4, I renewed it to Justice Thomas who did not deny it. The sparse reporting on this issue I have seen today has failed to stress how unique such a situation is to Supreme Court practice.  The vast majority of stay applications are denied.  And once denied, a renewed application is truly a desperate measure the success of which heralds one of the rarest birds in Supreme Court history. 

The relief I requested, a stay of the national election and a finding that candidates Obama, McCain and Calero be held ineligible to hold the office of President, has also not been granted at this time.  So that leaves option "c)": Justice Thomas has referred the case to the full court.  That much is clear from looking at the docket.  

What isn't clear is whether the full court has already examined the referral and taken the extraordinary action of accepting the stay application as if it were a full petition for writ of certiorari which was done in Bush v. Gore, 531 U.S. 98 at 98 (2000):

"The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari."  (Emphasis added.)

It's not clear that SCOTUS precedent would allow a stay application to be "DISTRIBUTED for Conference" without it first having been transformed by the court into a full petition.  I don't know if such a transformation could be sanctioned by Justice Thomas by himself.  Again, I'm waiting for an official disposition notice from the Clerk's office.  Regardless, either the full court has set this for Conference, or Justice Thomas has done it on his own.  Either way, it signifies an affirmative action inside the US Supreme Court testifying to the serious issues raised by this law suit.

Rather than explain the intense pre-requisites pertaining to a stay surviving denial, I've uploaded the following page from SUPREME COURT PRACTICE, 8th Edition, the ultimate SCOTUS resource:

Full post as published by Natural Born Citizen I on November 20, 2008 (boomark / email).