FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENDY TOWNLEY; AMY WHITLOCK; 

ASHLEY GUNSON; HEATHER THOMAS;

DAX WOOD; CASJA LINFORD;

WESLEY TOWNLEY; JENNY RIEDL;

TODD DOUGAN; BRUCE WOODBURY;

JAMES W. DEGRAFFENREID,

Plaintiffs-Appellees,

v. 

ROSS MILLER, Secretary of State of

Nevada,

Defendant-Appellant,

and

KINGSLEY EDWARDS,

Intervenor-Defendant. 

10903
WENDY TOWNLEY; AMY WHITLOCK; 

ASHLEY GUNSON; HEATHER THOMAS;

DAX WOOD; CASJA LINFORD;

WESLEY TOWNLEY; JENNY RIEDL; Nos. 12-16881

TODD DOUGAN; BRUCE WOODBURY; 12-16882

JAMES W. DEGRAFFENREID, D.C. No.

Plaintiffs-Appellees, 3:12-cv-00310-

v.  RCJ-WGC

District of Nevada, ROSS MILLER, Secretary of State of Reno Nevada,

Defendant, AMENDED

ORDER and

KINGSLEY EDWARDS,

Intervenor-Defendant-Appellant. 

Submitted to Motions Panel September 4, 2012

Filed September 5, 2012

Before: Stephen Reinhardt, Kim McLane Wardlaw, and

Carlos T. Bea, Circuit Judges.

Order;

Concurrence by Judge Reinhardt

COUNSEL

K. Kevin Benson, Carson City, Nevada, filed the motion for

stay of the district court’s order for appellant-defendant Ross

Miller, Secretary of State of Nevada. Catherine Cortez Masto,

Nevada Attorney General, was also on the motion.

10904 TOWNLEY v. MILLER
John Pablo Parris, Las Vegas, Nevada, filed the motion for

stay of the district court’s order for appellant-intervenordefendant Kingsley Edwards. 

Paul Swenson Prior, Las Vegas, Nevada, opposed the motion

for stay of the district court’s order for plaintiffs-appellees

Wendy Townley, Amy Whitlock, Ashley Gunson, Heather

Thomas, Dax Wood, Casja Linford, Wesley Townley, Jenny

Riedl, Todd Dougan, Bruce Woodbury, and James W.

Degraffenreid. 

ORDER

The order issued September 4, 2012 is hereby amended and

this amended order is designated for publication.

Appellants Ross Miller, Nevada Secretary of State, and

Kingsley Edwards, a Nevada voter, appeal from the district

court’s preliminary injunction order enjoining Nevada’s

nearly 37-year-old statute that requires a “None of These Candidates” option on the ballot in statewide elections for state or

federal office.

The district court entered its preliminary injunction order,

dated August 22, 2012, on August 24, 2012. The preliminary

injunction order reads in part:

[T]he Court grants [Docket Number] 15 Motion for

Preliminary [I]njunction. Defendant Secretary of

State Ross Miller, his agents, employees, affiliates,

and all those acting in concert with him, are enjoined

from allowing “None of these candidates” to appear

on voting ballots. [Defendant’s counsel]’s oral

motion to stay pending appeal is denied. Written ruling of the Court will issue. Court adjourns. 

(emphasis omitted). 

TOWNLEY v. MILLER 10905
The notices of appeal of the grant of the preliminary injunction were filed immediately thereafter, on August 24 and 25,

2012. The filing of these notices of appeal, consolidated by

this court on August 28, 2012, divested the district court of

jurisdiction over the preliminary injunction. See Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56 (1982); Davis v.

United States, 667 F.2d 822 (9th Cir. 1982) (filing of a notice

of appeal generally divests the district court of jurisdiction

over the matters appealed, although the district court may act

to assist the court of appeals in the exercise of its judgment).

We therefore have jurisdiction over these appeals from the

district court’s August 22, 2012 and August 24, 2012 orders

granting appellees’ motion for preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). 

Appellants’ emergency motions to stay the district court’s

August 22, 2012 order pending appeal are granted. See Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

Appellant Ross Miller’s motion for leave to file an oversized emergency motion to stay the district court’s August 22,

2012 order is granted. 

Appellees’ motion for leave to file an oversized opposition

to appellants’ emergency motions to stay the district court’s

August 22, 2012 order is granted. 

The briefing schedule established previously shall remain

in effect.

REINHARDT, Circuit Judge, Concurring:

I concur fully in this court’s order, including its determination that this court has jurisdiction over the appeals from the

district court’s preliminary injunction. I write separately only

to add that there is an alternative basis for our jurisdiction

10906 TOWNLEY v. MILLER
over the appeals—a basis that would exist even if the district

judge had not entered his minute order issuing the preliminary

injunction.

Before doing so, however, I wish to make clear that the

panel is in agreement that the basis for our grant of the stay

of the district court’s order pursuant to Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7 (2008), is that the likelihood of

success on the merits favors the state. Plaintiffs’ arguments

offer an inadequate basis for this court to conclude that

Nevada’s 37-year-old statute providing for “None of these

candidates” ballots is contrary to the Constitution or to any

federal statute. A failure to stay forthwith any injunction

issued by the district court would accordingly result in irreparable injury to the State of Nevada and its citizens, and would

be directly contrary to the public interest.

The parties have advised both this court and the district

court that, in order for Nevadans in the military to cast their

ballots in the forthcoming Presidential election, the complex

process of printing the statewide ballots must be completed no

later than September 22, 2012, and that the printing of all

such ballots must begin by September 7, 2012. Although the

district judge acknowledged his awareness of these facts, he

has deliberately attempted to avoid entering any order that

would allow an appeal before that date. His dilatory tactics

appear to serve no purpose other than to seek to prevent the

state from taking an appeal of his decision before it must print

the ballots. As set forth below, these attempts to frustrate the

jurisdiction of the appellate court, and, necessarily, the

Supreme Court—at least until the issue in this case is mooted

—itself constitutes a sufficient basis for our exercise of jurisdiction. 

The district judge’s intent to evade appellate review is plain

from the record. Indeed, the district judge essentially admitted

as much, as evidenced by the transcript of the hearing held

August 22, 2012, regarding the motion for preliminary injuncTOWNLEY v. MILLER 10907
tion. At that hearing, counsel for the state requested that the

district judge rule in time to permit an appeal to the Ninth Circuit before the ballot deadline; the district judge, however,

displayed no interest in Defendants’ ability to appeal:

MR. BENSON: Well, we have a problem in the procedural sense in that if we — in order to get to the

Ninth Circuit between now and September 7th — 

THE COURT: Well, that’s your problem. I’m just

trying to accommodate your problem with regard to

notifying the printer.

Although the district judge’s response was entirely out of

keeping with the importance and time sensitiveness of this

case, it, alone, would not suffice to evidence deliberate delay.

The court’s comment, however, followed numerous and

substantial delays caused by the district judge, which, in the

face of efforts by both parties to expedite consideration of the

matter,1 can only be explained as a deliberate attempt to evade

review by higher courts. For example, when the district judge

who had originally been assigned to this case withdrew from

the case on June 11, 2012, the current district judge as Chief

Judge took until July 3, 2012, to reassign the case—and, when

he did so, he reassigned it to himself. The resultant delay had

the prejudicial effect of rendering moot the parties’ request

for expedited briefing. Further, the district judge then waited

almost three weeks, until July 20, 2012, to even schedule a

hearing on the preliminary injunction. The date he eventually

chose—August 22, 2012—resulted in another month-long

delay in the resolution of this proceeding.

1Plaintiffs specifically requested expedited treatment of the preliminary

injunction, marking their motion “EXPEDITED TREATMENT

REQUESTED.” The parties also filed a request for an expedited briefing

schedule. They further explained the importance of an expeditious ruling

during the oral hearing on the preliminary injunction motion. 

10908 TOWNLEY v. MILLER
At the August 22, 2012, hearing, the parties once again

urged the court to issue its ruling as soon as possible; in

response, the district judge assured the parties that he would

rule quickly:

MR. BENSON: With regard to preparing the order

and all of that, we have a ballot deadline, printing

deadline coming up very quickly. 

THE COURT: That’s why I’m announcing this

orally now.

MR. BENSON: I appreciate that, your Honor.

THE COURT: Even though I would like more time

to study it, but —

MR. BENSON: And with regard to the written order,

my understanding is that an appeal cannot be taken

until a written order is put in the record so —

THE COURT: Right. I’ll try to do that as quickly as

I can.

As set forth in the district judge’s recent order in response to

the notices of appeal, however, the district judge has so far

refused to issue a fully-reasoned explanation for his preliminary injunction (a precondition, under his view, for appellate

review). Despite his promise to rule “quickly,” more than a

month has passed since the completion of briefing on that

issue—and 13 days have passed since the August 22 hearing

—without such a reasoned ruling. It is now three work days

before the printing of ballots must commence, and the district

judge has exhibited no signs of issuing the written explanation

that he believes is essential for appellate review.

The district judge was fully aware that his efforts might

affect this court’s jurisdiction and that Defendants were seekTOWNLEY v. MILLER 10909
ing appellate review of his decision. Indeed, his recent postappeal order notes the notices of appeal filed by the parties,

and describes them as “premature.” In any event, his awareness did not put an end to his attempts to evade appellate

review. When the appeals were filed, he immediately sought

to frustrate our ability to entertain a stay pending appeal,

denying that he had issued an order but scheduling a hearing

on whether he should grant a stay of that order for September

14, 2012—fully a week after the state’s deadline for printing

the ballots—a hearing that he deemed a precondition to this

court’s “entertainment” of a stay motion.2 This last action by

the district judge is particularly egregious in light of the fact

that he swiftly denied oral motions for the precise same stay

(made by both sets of Defendants) during the August 22,

2012, hearing.3

In circumstances such as these, when a district judge’s

2Before requesting a stay from this court, the parties are required either

to request one from the district court or demonstrate why seeking such a

stay would be impracticable. See Fed. R. App. P. 8(a). Here, both apply.

3The district judge was presented with two such motions for a stay during the August 22, 2012, hearing, and denied them both times without

equivocation. The first time was upon motion of the state: 

THE COURT: But the reason I’m announcing this orally is so

that you’re forewarned with regard to the printing problem. 

MR. BENSON: And, finally, with regard to that, I must take an

oral motion that the Court stay its order pending appeal. We do

intend to take an appeal. 

THE COURT: I’ll deny that. 

MR. BENSON: Thank you, your Honor. 

THE COURT: So you have it for the record. 

Later, in response to a motion by Defendant-Intervenor, the court again

denied the stay, stating, “I’ll deny that for the record so that you can ask

the appellate court for a stay” (emphasis added). Indeed, the district

court’s orders on this point are so contradictory that the state today filed

a motion with the district court to clarify the precise state of the record

regarding both the preliminary injunction and the stay. 

10910 TOWNLEY v. MILLER
actions might serve to deprive the appellate court of meaningful judicial review, an appellate court has the authority to

exercise jurisdiction in aid of its own appellate jurisdiction.

This is so even if an appeal has not yet been properly perfected. In FTC v. Dean Foods, Co., for example, the Supreme

Court upheld the court of appeals’s authority to grant a preliminary injunction preventing a merger that would moot any

subsequent appeal. 384 U.S. 597, 603-05 (1966). The Court

noted that, “where an appeal is not then pending but may be

later perfected,” an appellate court may exercise jurisdiction

when doing so would be necessary to preserve its later appellate jurisdiction. Id. at 603. The ability of appellate tribunals

to act to preserve their jurisdiction is a necessary element of

appellate review; “[o]therwise the appellate jurisdiction

could be defeated . . . by unauthorized action of the district

court obstructing the appeal.” Roche v. Evaporated Milk

Ass’n, 319 U.S. 21, 25 (1943) (emphasis added); see also California Energy Comm’n v. Johnson, 767 F.2d 631, 634 (9th

Cir. 1985) (reiterating this principle but declining to exercise

such jurisdiction).

When a decision on our part is necessary in order to permit

the losing party below to obtain review by our court and the

Supreme Court, we have the ability to act in order to preserve

the jurisdiction of the appellate courts. In this case, that

authority would permit us to decide the stay motion before us,

even if the district court had not issued the injunction on

August 24. Refusal to exercise our jurisdiction would frustrate

not only our appellate authority, but also that of the Supreme

Court, and would allow the district court to erroneously invalidate Nevada’s long-standing election process and to deprive

its citizens of their right to participate in Presidential elections

in the manner that the law prescribes. Such arrogance and

assumption of power by one individual is not acceptable in

our judicial system.

TOWNLEY v. MILLER 10911
I therefore wholeheartedly concur in the panel’s decision to

grant the stay.4

4

In any event, if the district court were to succeed temporarily in blocking appellate jurisdiction as a result of its contention that it has not issued

an injunction, the state would be free to commence printing the ballots

immediately. Any subsequent attempt to disrupt that printing would be

subject to an immediate stay as the weighing of the Winter factors would

favor the state even more strongly. 

10912 TOWNLEY v. MILLER