Unicorns and Loch Ness Monsters—Spotted Yesterday

Fox Rothschild LLP

Fox Rothschild LLP

Stories of mythical creatures have taken over this blog. First it was the summer 2021 unicorn where the Court of Appeals granted (and then withdrew) its first en banc review. And then it was the November 2021 Loch Ness Monster, when a panel issued a writ of prohibition—with a dissent.

December 2021 has brought sightings of both in the Court of Appeals. With candidate filings set to open on Monday, December 6, a three-judge court panel last Friday, December 3 refused to block new congressional and legislative maps approved by the General Assembly in November.

The petitioners vowed to appeal. A little before 9:00 on Monday morning, petitioners requested a temporary stay of the candidate filing period by noon. Petitioners also sought two extraordinary writs—supersedeas and that mythical prohibition writ that had been spotted just a few days earlier. See docket sheet and petitioners’ motion/petitions. A Court of Appeals writ panel issued the following temporary stay on Monday (likely mid-dayish):

The motion for temporary stay filed by Plaintiffs on 6 December 2021 is allowed in part to enjoin Defendants from opening of the candidate-filing period for the 2022 primary elections for Congress, the North Carolina Senate, and the North Carolina House of Representatives pending this Court’s ruling on Plaintiffs’ ‘Petition for Writ of Supersedeas or Prohibition.’ The period for Defendants to respond to Plaintiffs’ petition shall close at 12:00 p.m. on 9 December 2021. A ruling on the petition will be made upon Defendants’ filing of their responses or the expiration of the response period if no response is filed.

The legislative defendants wasted no time, filing their response before the stay was entered, and a motion for en banc review after the stay was entered. A few hours later, the full Court entered a special order accepting the case for en banc, vacating the stay, reopening the candidate-filing period, and agreeing to decide en banc the pending petitions for writ of supersedeas and prohibition.

IT IS HEREBY ORDERED, upon a vote of the majority of judges of the Court, that the Court will rehear the above captioned cause en banc. The panel’s order dated 6 December 2021 issuing a temporary stay is vacated and the Plaintiffs’ motion for temporary stay is denied. The en banc Court shall promptly rule on the pending Petition for Writ of Supersedeas or Prohibition.

And that folks, is the story of how we saw a unicorn and the Loch Ness Monster—all in one day.

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