This document is an application to the California Supreme Court requesting to be relieved from default and permission to file a letter brief in support of granting a question certified by the 9th Circuit Court of Appeals. The applicant, Margie Reilly, an amicus curiae in the 9th Circuit, did not receive timely notice of the certification request and missed the filing deadline. The applicant argues that due process entitles all interested parties to notice and an opportunity to be heard. Granting the application would allow the applicant to submit a letter brief in support of the Supreme Court accepting the certified question from the 9th Circuit.
This document is an application to the California Supreme Court requesting to be relieved from default and permission to file a letter brief in support of granting a question certified by the 9th Circuit Court of Appeals. The applicant, Margie Reilly, an amicus curiae in the 9th Circuit, did not receive timely notice of the certification request and missed the filing deadline. The applicant argues that due process entitles all interested parties to notice and an opportunity to be heard. Granting the application would allow the applicant to submit a letter brief in support of the Supreme Court accepting the certified question from the 9th Circuit.
This document is an application to the California Supreme Court requesting to be relieved from default and permission to file a letter brief in support of granting a question certified by the 9th Circuit Court of Appeals. The applicant, Margie Reilly, an amicus curiae in the 9th Circuit, did not receive timely notice of the certification request and missed the filing deadline. The applicant argues that due process entitles all interested parties to notice and an opportunity to be heard. Granting the application would allow the applicant to submit a letter brief in support of the Supreme Court accepting the certified question from the 9th Circuit.
L.... - ;1 FEB 16 ZOll fU' :9 Case No. 8189476 _. CALlFOltNlA SlJIUMB COURT PERRY, etc, et a4 PLAlNTIFF\REsPONoENT VS. SCHWARTZENEGOER On C.ertit'iCd Question from The 9 iTi Ckcuit Court of Appeal Case # 10-16696 APPLICA110N TO BE RELIEVED OF DEFAULT Pursuant to Califumia Rule ofCourt, Rule 8.6O(d), an order to file tetter brief, and grant Amicus Curiae Standing in this court; Proofof service JAMES JOSEPH LYNCH, JR. AtlDmey At Law (SON 8S8Q5) POB215802 CA 95821-8302 Phone: (916) 312-7369 Alternate: Email: jjlynehjr@jamesjosephlynchjr.com S189476 10 APPUCATION MARGIE REILLY, amicus curiae in the 9&11 Circuit, HEREBY APPLIES, pursuant to California Rules of Court, Rule 8.6O(d) to be relieved of default and an order permitting the filing of her letter brief in support of granting the Certification request and fur permitting her appearance herein. STATEMENT OF THE FACTS IN SUPPORT OF MOTION The 9 th circuit filed its ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF CALIFORNIA, on January 4, 2011. The City Attorney of San Francisco by its letter brief ofJ.anuary 24,2011, requested ~ s court accept the certification. Amicus Curiae did not have notice of the request for certification and first learned of it when served with the City and County of San Francisco letter brief dated January 24, 2011 by mail on or abo\1t January 29. Amicus Curiae served, and mailed to this court, her letter brief setting out why this court ought to accept the certified question, stated another related question, as permitted by the <jh Circuit Order, on February 7. Plaintiff was without notice of the order of certification. That order appears to be dated January 24. 20 days from 1/24 would be Febnwy 13. Hence the letter briefis timely. The clerk insisted the Ietw- briefwas late. As Rule 8.543(e)(1) is without limitation on who may support the certified question in this case, the abbn:viated"parties" in (e)(2) was understood to mean aU of those listed in (e)(I). Under that construction, Amicus letter brief was timely. The clerk insisted amicus was not a party, therefore could not file under (e). The clerk insisted that Amicus was not a party. hence rule (e)(2) was not available for her use. I followed the applicable ~ infra, which suggested that Amicus was timely. It is unlikely that anyone would be prejudiced in responding should the court grant the application. This application follows. APPUCABLE RULE OF COURT Rule 8.548{e), provides as follows: (e) Letters in support or opposition (1) Within 20 days after the request is f i J ~ any party or othe1' peISOO or entity wanting to support or oppose the request must send a letter to the Supreme Court. with service on the parties and on the requesting court. (2) Within 10 days after service of a letter under (1), any party may 1 send a reply letter to the SUpreme Court. with service on the other parties and the JBqUeSting court. (3) A letter or reply asking the court to restate the question under (f)(5) must propose new WOfding. MEMORANDUM OF LAW I. A PARTY MAY APPLY TO VACATE A DEFAULT California Rules,of Court provide, inte1' alia: "Rnle 8.6O(d) Retiefftom default "For good cause, a Rviewing court may relieve a party iiom default fur any failure to comply with these mIes except the failtIm to file a timely notice ofappeal or a timely statement of reasonable grounds in s ~ of a certificate ofprobable cause. "(Subd (d) relettered effective January 1,2001; adopted as Subd (e).)'" ll. DUE PROCESS PROTECTS APPElJ.ATE RIGHTS Due process requires that an. opposing party have a meaningful opportunity to be heard. Pennoyerv. Ne.f}; 95 US 714 (1878) ."),foOowed in Bumham v. Superior Court OjCaJ., Marin County, 495 U.S. 604 (1990); Goldberg v. Kelly, 397 is 254 (1m. All parties, including amicus curiae, in THE 9TI-l Circuit are entitled to notice and opportunity to be heard because the issues affi:ct the disposition in a court where amicus is an interested person in the outcome. See generQ/ly, Pl!1I1It1)IUv. Neft supra., The court should grant the motion for leave to file the letter briet: and enter Amicus' request to note her appeanmce. CONCLUSION WEREFORE AMICUS prays that the court enter her appearance and order the filing of her letter brief. Dated; 02113/11 JAMES JOSEPH L Attorney for Amicus 2 DECLARATION OF COUNSEL I ~ JAMES JOSPH LYNCH, ~ heRby declare: I am the attorney fur Amicus curia, and penonaIIy familiar with the faas regarding the procedures followed in this case.. I incotporate by retere.t1Ce the STATEMENT OF THE FAct'S IN SUPPORT OF MOTION set furth supra at page 1. I declare UDder penalty of perjury undr:r the laws of the State of California that the foregoing is true and c:otte:d 2Dd dUll this declanrioD. W1IS c:ucutr.d on [date:} 02113111 lAMES JOSPH LvAdlrM Attorney At Law 3 PROOF OF SERVICE I, JAMES JOSEPH LYNCi4 JR (SBN 8 5 3 0 S ) ~ am a citilm ofthc United States, a member of the California bet, and DOt aparty to the within action. On Febmary 7,2011, J served the foDowing doeume.ut: LETTER TO 1HE CALIFORNIA SUPREME COURT re certification request pending from the 9 1b Cir Cowt ofAppcal, Case # 16-16696 On eacla ofthe following persons by the Mode of Service indicated: earthlink _ 1 _ s PS PS SPS auf Benjamin UntDn SPS 1 KeystDne Avenue oshua Irwin Sc::hiIIer . JasonBdan IES, SCHflJ.ER & FU:xNER. LlP 15 Lexington A.... fir York. NY 10022 C. Mefir-.neier. Jr SPS Stroud GlASSUAN STROUOLLP 9th Street, Stita 1700 \SaC:ran'l8l1lto, CA 9581-4 Michael Go1dman SCHILLER & NER. UP 1999 HarrisOn Street 1Oak1and. CA 94812 IL 60082 SPS J. ShackelfOrd. SPS hief Counsel Mateer -7. PS SPS SPS D. S1aYe': COUNSEL 055 Maitland Center 2 nd Rr. Nine. CA 94612 S.S... fnstitsdft W PItMlO Parttway, 1600 ......IIU.. TX 7S07S s PS . L W8sseI NNtNG & MARDER KASSl Obstter on . L Stayer BERTY COUNSEL .0. Box 54Qn4 ' FL32854 1730 M Street N.W., Suite 10 Lynn Dennis Wardle SPS Cherokee J.n. H'Cl1lO, UT 84604 LLP 1 S. Figuefoe Street Angeles. CA 90017 KentEhat S aBJomia Legal ReseaJch. nco 187 North 1150 East 1Lll1l1AIlI1., UT 84042-2527 Uzabe1h J. Cabr8Ier fEFF CABAASER EtMANN& NSTEIN, LLP !Emlt.rcilldero center West 7S __, S1Net. 29 th Ar Francisco,' CA 94111 SPS HunWMoon SPS F.Maees R. PWAI., Jr. nitBd StaIM CIdhaIic 11 Four1h S1nllet. .E. 0020017 Frands Sweeney Thomas 0'Ban EY & GREENE llP tenKW8ggoner Cent8r II S, U& 1 E. Stockton Blvd., Ste. NSTRY. PllC 18 uit84900 Ik GrtMI, CA 95624 Pl8ceTower Find Avenl.8, A WA98121 S S John Pafford SPS Roth 5ekuIow CENTER FOR .W FFORD, LAWRENCE & OSS, PLlC 1100 ComrneR:e Street ynchburg, VA 24504 -4 s PS SPS SPS SPS SPS eat'1ichaet 5elindaWBy Gatos, CA 95032 erbert Geofge Grey SPS ttomey at Law uite320 S.W. Griffith Drive IBeaverb:>n, OR 97005 PS sPS' SPS SPS SPS SPS SPS USPS B.Wydra,Chief . 300 129 K Street, NW . OC20006 unset onstitutional AccountabiJ ugene Dong 86 HoRy oak OrNe aID Alto, CA 94303 _l\_ " - 1200 18th Street NW 8shington, DC 20038 S.w.Id jStarmm Law Sc:hoaI ~ m Quadrangle Nahm AMal w.., talldfani, CA 94305 uI Man:h Smith \JENNER & BLOCK LLP . 900 1099 New Yen Avenue. NW ashington, DC 20001 s SPS Ho, MsistInt CounIeI Cp Legat Defense and 1EdU::a1io1't81 ~ SPS SPS AshbuI1Dn Piaat MA02108 FIShman Mall'DUlis NN EMANUEL RQUHART& IVAN, LlP Twin DaIphin OrNe. th Floor edwood Shares. CA . ohn D. Freed NGTON & BURUNG LP - Front StnMtt, Sun. 3500 an Fnmdsco, CA 94111 SPS iter Pizer L A J l m [ ~ LEGAl EFENSEANO DUCATION FUND, NC. 325 Wdshife BWd., Lite 1300 os Angeles, CA 1Q..1729 PS s SPS s SPS PS CaIc:lW8lllesle &
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" Deputy fgov.OI8 City HaD. Room 234 . _ Dr. C.-B, QQQcIIctt Pl 941..4612 USPS senric:8 waa salingIJ'Ue Md correct copy of the doc:&.II*It in 9f18Iat:Ie. poetIIte and d8paaiIItg the..",.. into a fIICiIIy of the United St8les Postontee All other 88fYice WD by Em8iI shown by email addIea and was accomplished by standard llItehiemail. I declare under penally of perjury under the laws of1M State of CaIifomia thetthe fcngoing is true and correct. EXECUlED FEBRUARY 15, 2011. IsJ James JoIeJJh Lynch. Jr. JAMES JOSEPH lYNCH, JR. -7