Opinion
2:02-cv-2250-GEB-JFM-P.
June 19, 2007
ORDER
On June 18, 2007, Respondent Diane Butler filed an "Application for a Stay of the Court's June 14, 2007 Order Granting the Petition for Writ of Habeas Corpus." Respondent "requests a stay of this Court's order requiring the Board of Parole Hearings . . . to set a release date for [Petitioner] pending appeal." (Resp.'s Appl. at 1.) Respondent requests "an expedited ruling on the stay request because the June 14, 2007 Order directs Respondent to comply within thirty days." (Id. at 2.)
Respondent seeks the stay pending appeal to the Ninth Circuit under Federal Rule of Civil Procedure 62(c) ("Rule 62(c)"). "Rule 62(c) provides that when an appeal is taken from a final judgment granting an injunction, the court has discretion to suspend the injunction during the pendency of an appeal upon such terms that will secure the rights of the adverse party." (Appl. at 2 (citing Rule 62(c)).) "[T]he factors regulating the issuance of a stay are . . .: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Respondent contends that a stay pending appeal should be granted because (1) Respondent has a high likelihood of success on the merits of her appeal (Appl. at 3); (2) the parole board and the state's parole system will be irreparably injured if a parole date is set for Petitioner, because "requiring the Board to set a release date for [Petitioner] improperly usurp[s] the executive's legislatively mandated functions" and because once the parole board sets a release date, the Governor will review that decision, and "should the Governor grant parole to [Petitioner], the case will be moot and the Board will be deprived of having legal issues that are of significant import litigated" (id. at 6-7); (3) the issuance of a stay would not substantially injure Petitioner (id. at 7); and (4) a stay is necessary to protect the public interest, since "[t]he state has established a parole process that should be respected [and] the public has an interest in the Board's decision remaining undisturbed during the pendency of the appeal of this court's decision" (id. at 8).
For the reasons stated in the June 14 Order, and the amended findings and recommendations filed May 23, 3007, Respondent has not established that she is likely to succeed on the merits of her appeal. Additionally, Respondent's arguments that the parole board and the state's parole system will suffer irreparable harm if a parole date is set for Petitioner, and that the public has an interest in the parole board's decision remaining undisturbed, are unpersuasive, especially in light of Respondent's statement that the parole board's decision will "move on for review by the Governor" after a release date is set. (Id. at 7.) Moreover, Petitioner would be irreparably harmed by a stay that would keep him in prison indefinitely, especially since it has already been determined that due process requires the parole board to set a release date for Petitioner. Therefore, Respondent's application for a stay pending appeal is denied.
IT IS SO ORDERED.