Opinion
NO. CIV. S-08-1311 LKK/JFM PS.
June 16, 2008
ORDER
On June 12, 2008, the court previously denied plaintiff's motion for a temporary restraining order to stay enforcement of the California Supreme Court decision in In re Marriage Cases, 43 Cal. 4th 757 (2008). On June 13, 2008, plaintiff filed a motion for reconsideration as well as a notice of appeal.
A denial of a temporary restraining order is ordinarily not an appealable order unless it effectively decides the merits of the case. Hunt v. Nat'l Broadcasting Co., Inc., 872 F.2d 289, 292 (9th Cir. 1989). Here, the court's order did effectively decide the merits of the case, as it found that the California Supreme Court decision in no way violated plaintiff's rights under the Free Exercise Clause of the First Amendment.
Ordinarily, "a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal." Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). An exception to the rule exists where the appeal is frivolous.Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992); Apostol v. Gallion, 870 F.3d 1335 (7th Cir. 1989) ("If the claim . . . is a sham the notice of appeal does not transfer jurisdiction to the court of appeals, and so does not stop the district court in its tracks."); Richardson v. United States, 468 U.S. 317, 322, (1984) ("the appealability of a double jeopardy claim depends on its being at least `colorable'"). Here, plaintiff has failed to state even a colorable First Amendment claim.
Accordingly, the court finds that it has jurisdiction, and upon review of the motion for reconsideration, DENIES the motion.
IT IS SO ORDERED.