Back in the Saddle
With the win-by-a-nose Kentucky Derby making headlines, it’s an appropriate week to be back in the saddle for Gazzola v. Hochul. I’m on warm-up laps around my brain and filings and files, anticipating the SCOTUS deadline of Monday, May 13, 2024 for the State of New York to submit their response to my Petition for a Writ of Certiorari. Let’s cover that plus the Thursday, May 9, 2024 SCOTUS deadline for NYS in the Antonyuk v. James case.
HERE is the pending Petition for Cert in Gazzola v. Hochul.
HERE is the SCOTUS page for this current Gazzola Petition for Cert.
And, HERE is the current SCOTUS page for the Antonyuk v. James case with its filing documents.
This is the fourth time filing to SCOTUS for Gazzola. It’s the second time filing for Antonyuk. Since fall of 2022, Gazzola and Antonyuk have been fighting in court to achieve preliminary injunctions against a list of laws that went into effect summer 2022. Preliminary injunctions would, at least, stop the New York State Police from enforcing the laws complained of, while the lawsuits go through discovery and trial on the merits.
I have Gazzola, where our motto is “small, but mighty.”
Counsel of Record to SCOTUS for Antonyuk is Robert Olsen. Accompanying him is attorney Stephen Stamboulieh, who was lead on the case in district and circuit courts, below.
Keep in mind: the State has no obligation to respond to either Petition. It’s not mandatory.
The options for the State are file on time; let the time expire by doing nothing; or file a formal waiver.
If the State answers, the plaintiffs (“petitioners” in SCOTUS speak) may file a reply. This, too, is optional. There is no obligation for the petitioners to file a reply. There is also no obligation for SCOTUS to await a reply, even if a lawyer immediately files a letter saying “I’m going to file a reply on X date.” The general parameter is get a reply filed within about three days, understanding that the court is not obligated to wait for you and the submission may not be reviewed.
If the State doesn’t submit a response, petitioners can’t say another word. (This makes for a genuine strategic concern, doesn’t it?)
As soon as the response period ends, the Petition advances to the Justices and is scheduled for “case conference.” “Case conference” happens on Thursdays, as designated on the court calendar, which is HERE. Many Thursdays, the Justices literally sit, in conference with each other, in the most confidential of all aspects of the Supreme Court process.
During case conference, four (4) of the Justices must vote in favor of a case to be picked to advance to the merits stage. The “merits stage” includes oral arguments and a written decision. We will never know – no one gets to know – what the case conference vote count was or who voted which way. (To win at the merits stage, a case must have five (5) Justices in agreement for a majority opinion. At case conference, a Petition is “granted” on four positive votes.)
The Antonyuk NYS (“respondents”) deadline being this Thursday, the soonest the Antonyuk case could hit a case conference is [look at the SCOTUS calendar] the following Thursday, May 16, 2024. The Gazzola NYS deadline being next Monday, in theory, could also reach the case calendar on Thursday, May 16, 2024. This would converge the two cases, again, as they were before the Second Circuit Court of Appeals last March 20, 2023 for oral arguments and on December 8, 2023 for written decisions.
I’m thinking we’ll see both Antonyuk and Gazzola hit the following case conference of Thursday, May 23, 2024. The Supreme Court page for each Petition will show the updates to you and I’ll send you e-blasts with updates this week and next, and then when we get the case conference results.
The results of case conferences on Thursdays are announced the following Mondays at 9:30 a.m. through the SCOTUS website.
A Petition at case conference can be “held over” to the next case conference – theoretically, indefinitely. In reality, we’re at May 7 and this term final case conference announcements are Monday, June 24, 2024. I’d like to think that we’ll have a ‘granted’ or ‘denied’ from SCOTUS by this date, latest.
Now, let’s do only one step of the optimistic outcome of the cases being granted: bye-bye summertime at the campfire for me! Yup. Merits briefs would be due, calculated from the date granted. Oral arguments to follow in the fall. I’m going to again invoke the phrase “I’d like to think” that a written decision would follow before year’s end. That would make it two full years on motions for preliminary injunctions.
For right now, let’s run through our submission finish line of the next two weeks. That’s victory enough at the moment.
