Schmalfeldt v. Hoge: What’s Next?

I’ve had several people ask me what happens next with Bill Schmalfeldt’s appeal of the peace order issued against him. The Court of Appeals has several options, but its most likely next step would be to rule on his motion to reconsider the denial of a stay of the peace order pending appeal. The Court might decide that motion very quickly. My guess would be next week.

It is possible that the Court will expedite Schmalfeldt’s appeal. However, the Court’s website says that

Petitions usually take six to eight weeks to be acted on by the Court.

If the Court grants his petition, it has the the option for issuing a ruling based on his petition and my answer, but that would be very unusual. Normally, the Court wants to know more and asks for briefs from the parties. The Court’s website says that the usual schedule for briefs is

a. Appellant’s brief due within 40 days after the filing of the record.
b. Appellee’s brief due 30 days after the filing of the appellant’s brief.
c. Appellant’s reply brief due within 20 days after the filing of the appellee’s brief but in any event not later than 10 days before the date of argument.

The Court can rule based on what is in the briefs, but it can also schedule a date for the parties to present oral arguments to the judges. Each party is typically given 15 minutes to present his case while the judges interrupt with questions. It’s not unusual for the Court to take several weeks to several months to issue a ruling following the oral arguments.

So what could happen? There’s a wide range of possibilities.

At the low end of the probability scale, we could see the Court rule on the case next week.

If the Court takes the case and handles it normally, Schmalfeldt’s brief will likely be due in late December or early January, my brief will be due in late January or early February, and his reply brief due in late February. Oral arguments could come as soon as late March, and we might get a ruling in April.

Did I mention that the peace order expires in mid December? Of course, I can petition for it to be extended for an additional six months, and I may have to do so if the appeal is still in process.

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