Stay with me here.....
In late-December, the U.S. District Court enjoined San Francisco's Health Care Security Ordinance. That meant that it could not go into effect. Here is our post on the injunction.
The City appealed. Typically, the injunction remains in effect until the appeal is over.
But the City decided to ask the 9th Circuit Court of Appeals to stay the injunction pending resolution of the appeal. That is, the City wants to implement its law that the district court says is illegal.
No way, right? I mean if the stay issues, then the law goes into effect. That's not fair. If the law is later found preempted by the court of appeals, who is going to pay back all those employers who were subjected to an illegal law? (No one.) So, of course, the Ninth Circuit would not engage in an exercise of raw power and basically pre-decide an appeal to facilitate San Francisco's universal health care law, right?
Wrong. The Ninth Circuit just granted the stay based on an expedited motion and an argument on January 3. In granting the stay, the Court basically decided that the city is going to win on appeal. The panel could not have been much stronger in its language. Here is the opinion.
Here's a question the court did not tackle: What's the point of having an full appeal procedure when the court is willing to say, based on an appeal that took less than a week to file, argue, and decide, that there is a "strong likelihood" of reversal? Not much. So, if you ever want to see how well your appeal is going to fare before the Ninth Circuit, apply for a stay!
It seems that if the Golden Gate Restaurant Association intends on winning, it will have to convince the en banc court to decide this case, or the U.S. Supreme Court. In the meantime, the SF Health Care Security Ordinance is going to go into effect. That means we have to read and digest what it requires... which I will do in the future.
DGV