the Supreme Court asking it to review the judgment in this case. As this court acknowledged, its decision in this case required it to resolve questions of first impression and considerable import. The importance of those questions and the reasons why they should be considered by the Supreme Court are illustrated by the dissenting opinion and are developed in the appended draft petition. Appellant submits that he should have the opportunity to submit and the Supreme Court should have the opportunity to consider the petition before the mandate of this court issues. 2. It is clear that a stay is necessary to preserve the status quo so that the Supreme Court could afford meaningful relief if it granted review. The true irreparable injury that would stem from the denial of stay, however, is somewhat more subtle. If the stay is denied, the Supreme Court will consider the petition with knowledge that it cannot grant meaningful relief. Although the case would remain one that was capable of repetition while evading review, the relative mootness and the political sensitivity of the case must necessarily be factors considered by the Justices in determining whether their discretion should be exercised in favor of review. The reasonable possibility that four Justices might vote to grant review that now exists is likely to be diminished significantly if the stay is not granted. That is an irreparable injury and one that is not fair to appellant or to the principles he has sought to establish and maintain. The importance of the questions presented and the likelihood that review will be granted are matters that this court is better situated to evaluate at this stage. Appellant submits that the importance is clear and the possibility of review cannot properly be discounted. He recognizes, however, that the fact that the request for disclosure comes from a coordinate branch of government seeking material for use in a constitutional inquiry may make the court reluctant to strike the balance in his favor. For that reason, he suggests, as an alternative, that the court extend the stay for the brief period requested to enable him to seek a further stay from the Supreme Court.1 3. The impact of a stay upon the inquiry being conducted by the Committee on the Judiciary is unclear. The inquiry has apparently proceeded without the requested material. On March 22, 1988, the Subcommittee on Criminal Justice advised Judge Hastings that it would hold hearings in May. (A copy of the letter from the Subcommittee Chairman 1 Counsel recognizes that his delay in submitting this motion may make the issue more difficult and appellant's equities less compelling. He would ask the court to remember that he is coordinating Judge Hastings's representation in three other forums--the proceedings before the special committee on the Justice Department's complaint, the proceedings on the pending petition asking the Supreme Court to review the judgment of the United States Court of Appeals for the District of Columbia, and the proceedings in the Each of these proceedings has also required significant attention over the past three weeks. House. to Judge Hastings is also appended to this motion.) Thus, it would appear that the Subcommittee has been able to proceed effectively in the absence of the disclosure of the confidential information sought in this case. In any event, the fact that a decision to hold hearings was made prior to the receipt of the requested materials belies any claim that the inquiry will be substantially handicapped or delayed if the stay is granted. Moreover, the public interest in a prompt and orderly resolution of these matters is more likely to be aided than it is to be harmed by the stay. As the court is aware, a prior parallel investigation into the matter based upon the complaint submitted by former Assistant Attorney General Weld is being conducted within the judiciary pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the "Act").2 Although the impeachment discretion ultimately remains with the House, proceedings under the Act were begun more than a year prior to the Committee's request in this case. The nature of the allegations made and the existence of the prior proceedings suggest that the public interest as well as the House's and Judge Hastings's interests may be enhanced by the completion of those proceedings during the period of the stay sought here. 2 (1982 & Pub. L. No. 96-458, 94 Stat. 2035 (1980), codified as amended at 28 U.S.c. §§ 331, 332, 372 (c) 604 (h) Accordingly, Judge Hastings submits that the court should stay its mandate for at least fifteen days subject to one of two conditions. Appellant submits that it would be preferable for the court to extend the stay conditioned upon appellant's completing and filing his petition within the fifteen day period. In the alternative, appellant requests that the court stay the mandate for fifteen days to permit him to complete and file the petition and an application asking the Supreme Court to extend the stay pending disposition of the petition. Respectfully submitted, Robert S. Catz c/o Cleveland-Marshall Cleveland State University William G. McLain, Esq. Terence J. Anderson P.O. Box 248087 Patricia Williams, Esq. |