There Are Essentially Three Elements to This
Video Transcribed: What is the United States Supreme Court test for whether they will stay a lower court ruling? I’m McGirt attorney James Wirth. And that’s the question before us is what is the requirement that the Supreme Court goes through to determine whether to stay a case? And there are essentially three elements to it.
So if you’ve got a final decision from a state court, a high court from the state, and then you want to appeal it to the United States Supreme Court, generally you have 90 days to do so, but if the issue is important and that order goes into effect before that time, you may file a request for a stay.
And this is relevant right now because it’s going on in the McGirt case here in Oklahoma. It’s the Bosse case, where the decision from the Oklahoma Court of Criminal Appeals went against the state in favor of a defendant that could be released from incarceration.
In practice, the defendant would be turned over to the feds for re-prosecution in federal court, but it may apply the precedent to other cases where somebody may be released. So because of that, the state is being very proactive on it and fighting it very hard.
And when that court denied the request to further stay its mandate, they filed a motion or a petition for a stay with the United States Supreme Court, where they had to evaluate these three parts to decide whether to grant it.
And they are, first, is there a reasonable probability that four members of the court will be of the opinion that the issues are sufficiently meritorious to grant certiorari?
So four members of the court have to vote together in order to accept the case to the United States Supreme Court. And the first element for determining whether there is a stay is whether it’s likely that four justices of the Supreme Court will vote to accept the case.
And the second one, is there a significant possibility of reversal of the lower court’s decision? And third, is it likely that irreparable harm will issue or will result from the issuance of the mandate? So those are the three factors.
And in this case, the Bosse case, they decided that our three are met and they granted that stay, which is concerning that there may be a risk of Bosse being overruled by the United States Supreme Court.
It’s interesting though, that they found that there is irreparable harm that will result from the issuing of the mandate because there is really no harm in that case.
The feds have already filed charges against Bosse that are going to be picked up and moved forward, regardless of whether the state conviction is reversed or not. So there is really no harm, no foul there.
The only harm would be from the precedent that it would set. It could occur in other cases, but that’s not really a basis for irreparable harm in this case. Nonetheless, the United States Supreme Court, perhaps in an abundance of caution, went ahead and granted this stay.
And now, it is up to the state of Oklahoma to see whether they’re going to file their petition for writ of certiorari. And then whether the court accepts that appeal and decides to make a decision. If they do accept it, then it goes to the last stage, which is, is the court going to affirm the ruling from the Oklahoma Court of Criminal Appeals or reverse it?
But the issue for this video is, how does the court make the decision whether to do they stay? It’s through those three parts. If you’ve got questions on how this may apply to your case and your circumstances, don’t take this general information from this video off the internet, you’re going to want to talk to an attorney confidentially about your circumstances. To get that scheduled with somebody in my office, you can go online to makelaweasy.com.