Abatti court filing points to U.S. Supreme Court appeal

IMPERIAL — An attorney for local farmer Mike Abatti is asking the Fourth District Court of Appeal to stay the remittitur it issued to a local court last week, signaling the appeals process has been completed.

The appellate court filed the remittitur two days after the Supreme Court of California chose not to review the case and its argument with the Imperial Irrigation District over who owns Colorado River water rights in Imperial Valley.

A remittitur is the last step in the appeal process.

The court of appeal automatically issues a remittitur and sends notice to all parties in the case. The parties do not need to apply for a remittitur or request a copy from the court.

Abatti attorney Cheryl Orr on Monday filed a brief, asking for the remittitur to be delayed 90 days to allow her client an opportunity to file an appeal with the U.S. Supreme Court.

According to the court filing, the Abatti family requested that the court of appeal recall the remittitur in this action issued just two business days ago and stay future issuance of the remittitur to allow the Abatti family to exercise their right to seek review of the decision in this case by the U.S. Supreme Court by way of a Petition for Certiorari.

Orr pointed out this court’s opinion affirmed the trial court’s order in striking down the 2013 Equitable Distribution Plan.

She wrote the Imperial Irrigation District would not be prejudiced by the recall of the remittitur to allow Abatti to file a Petition for Certiorari and allow the Supreme Court to rule on that petition.

Any replacement

EDP that IID may be inclined to adopt will require public notice and hearing and will not be affected by any recall and stay of the issuance of the remittitur, she wrote in her court filing.

In contrast, she wrote, the Abattis face irreparable harm, the loss of the right to U.S. Supreme Court review, if this motion is not granted.

For Abatti to appeal to the nation’s highest court, the remittitur would have to be stayed since this signals the end of the appeals.

“Case law recognizes that it is appropriate to allow a stay of a remittitur after denial of review by the California Supreme Court to allow a party the opportunity to file a Petition for Certiorari with the United States Supreme Court,” Orr wrote.

In conclusion, Orr wrote there is good cause for the court to order recall of the remittitur issued last Friday and a stay of its future issuance until after the U.S. Supreme Court has denied review or if the certiorari is granted, after the court has issued a decision in the case.

The Abattis had 90 days from the denial of review by the California Supreme Court to file a Petition for Certiorari with the U.S. Supreme Court.

Therefore, she wrote, the remittitur was issued before the Abattis had made the decision to proceed with a Petition for Certiorari and before their counsel filed a motion to stay the issuance of the remittitur for a reasonable time to allow them to file the Petition for Certiorari.

IID Public Information Officer Robert Schettler said the district is aware of Orr’s request.

Abatti did not respond to requests for comment.