Wednesday, March 23, 2005

Terri Schiavo Appeal Denied

Early this morning, the Eleventh Circuit Court of Appeals denied the Schiavo parents' appeal. A careful reading of the opinion will reveal I think important points, apparently lost on the congressional majority and the President in a rush to subvert the Constitutional process upon which our legal system rests.

The appellate court noted:

Controlling precedent is clear that injunctive relief may not be granted unelss the plaintiff establishes the substantial likelihood of success criterion (Citations omitted) . . . After analyzing each of the plaintiffs' claims, the district court concluded they had failed to show a substantial case on the merits as to any of the claims.


Discussing its scope of appellate review, the court stated:

While the district court conducted de novo review of the plaintiffs' claims, we review the district court's denial of temporary injunctive relief only for an abuse of discretion. The scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous fact finding, or if it reaches a conclusion that is clearly unreasonable or incorrect.


The appellate court did not find any abuse of discretion by the federal district court judge, who reveiwed the case. The appellate court agreed that the plaintiffs failed to demonstrate a substantial case on the merits of any of their claims. They also pointed out that the district court judge's opinion was carefully thought-out, and was not an abuse of discretion.

The appellate court then commented on the principal theme of the plaintiffs' argument that the law Congress enacted required that injunctive relief be granted:

Pub. L. No. 109-3 is an extraordinary piece of legislation, and it does many things. Defendants contend that the legislation is so extraordinary that it is unconstitutional in several respects. We need not decide that question (citations omitted) . . . It is enough for present purposes that in enacting Pub. L. No 109-3 Congress did not alter for purposes of this case the long-standing general law governing whether temproary restraining orders or preliminary injunctions should be issued by federal courts.

There is no provision in Pub. L. No. 109-3 addressing whether or under what conditions the district court should grant temporary or preliminary relief in this case. There is no more reason in the text of the Act to read in any special rule about temporary or preliminary relief than there would be to read in a special rule about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) or summary judgment grounds.

Not only that, but Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay.


The appellate court then quoted from the Congressional Record an enlightening exchange between Senator Levin, and Senator Frist on the senate floor:

Mr. LEVIN: Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case.

Mr. Frist: I would be pleased to help clarify this issue.

Mr. LEVIN: Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposed to that position because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may."

The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a sta. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on the current law. Under current law, a judge may decide whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST: I share the understanding of the Senator from Michigan, as does the junior Senator fro Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Ms. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

Mr. LEVIN: In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration.


More to come. . .

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