The Volokh Conspiracy

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How The Briefing Schedule Stole Christmas!

It takes weeks, not days, and certainly not hours, to review California's complete prohibition on indoor worship.


On December 3, hours after the Court GVR'd Harvest Rock, the Governor of California implemented a new framework that would permit the complete prohibition on indoor worship. With three weeks to go till Christmas, certainly the District Courts and Ninth Circuit could promptly and expeditiously decide these cases before December 25–especially after another Ninth Circuit panel held that Diocese effected a "seismic shift in Free Exercise law." But 'tis the season for leisurely briefing schedules.

Let's start with the never-ending Harvest Rock litigation. The District Court took more than two weeks to deny a Temporary Restraining Order. The same day that the TRO was denied, the Church sought an injunction pending appeal. Now, the Ninth Circuit has issued a briefing schedule:

The court has received appellants' emergency motion for injunction pending appeal. The response to the motion is due at 9:00 a.m. Pacific Time on December 28, 2020. The optional reply in support of the motion is due at 9:00 a.m. Pacific Time on December 29, 2020.

Maybe we'll get a ruling by New Year. Judge O'Scannlain dissented, in part, from the order:

Although I have no objection to the briefing schedule set forth in the court's order, I strongly object to our failure to accommodate, even in a temporary fashion, Harvest Rock Church's request for relief from California's severe restrictions on indoor worship services by December 24.

The requested deadline is hardly arbitrary: The church seeks immediate action from our court so that its members can worship on Christmas Day, one of the most sacred holy days in the Christian calendar. And it is not the church's fault that it finds itself in this predicament. The church moved for a temporary restraining order against California's worship-related restrictions as soon as this case was remanded following a decision by the Supreme Court—yet it had to wait more than two weeks before the district court ruled on that motion. When the district court finally denied its motion two days ago, Harvest Rock Church filed a notice of appeal the same day. The next day, yesterday, the church moved for an emergency injunction from our court.

Judge O'Scannlain would have granted temporary relief, at least for Christmas:

Even if we need more time to consider the pending motion in full, we should have granted the church at least the temporary relief it needs to ensure that its members can exercise freely the fundamental right to practice their Christian religion on one of the most sacred Christian days of the year. U.S. Const. amend. I.

Alas, people on faith in Bay Area are in a tough spot. The weather outside is frightful: 80% chance of rain, wind gusts up to 25 miles per hour, and the temperature will dip below 50. I hope members of the church can bundle up and bring umbrellas. They can pray through the silent night on the serene streets of San Francisco.


Another Ninth Circuit panel issued a far-better briefing schedule in the never-ending South Bay litigation:

Appellees are directed to file an opposition to Appellants' Emergency Motion for an Injunction Pending Appeal on Thursday, December 24, 2020, by 9:00 A.M. Appellants' optional reply brief is due on Thursday, December 24, 2020, by 12:00 P.M.

In theory, at least, this panel can decide the case before Christmas. And the full appeal will be expedited, with oral argument set for January 15:

The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due on or before December 31, 2020; the answering brief is due on or before January 7, 2021; and the optional reply brief is due on or before January 11, 2021.

This appeal is set for virtual oral argument at the Richard H. Chambers U.S. Court of Appeals Building, Pasadena, California, on January 15, 2021, at 1:00 P.M.

Justice Breyer was simply wrong that these sorts of disputes can be resolved in "hours." Litigation takes time. Let's take Harvest Rock as an example. Judge Bernal likely knew from the outset that the TRO would be denied. But he felt the need to write a fourteen page decision. An opinion that, frankly, no one will ever care about after next week. It was an exercise in self-reflection, at the expense of litigants who wanted a timely resolution. My tentative inclination is that judges who plan to deny the TRO should simply issue the order, so that a proper appeal can be taken. An opinion can be issued in due course, even while the appeal is pending. Here, prompt review is far more important that thorough consideration. At a minimum, judges owe litigants a prompt ruling in urgent litigation touching on enumerated constitutional rights.

I'm willing to wager anyone a piece of stale fruitcake that Governor Newsom will relax the requirements as soon as Circuit Justice Kagan calls for a response.