(The Return of) Ignatz, by Sam Heldman

Thursday, March 24, 2005

that damn case
I really hate the fact that it's taking up so much of the news, but if everybody's talking about it we might as well help them know what they're talking about.

As it's panning out (in the dissents in the 11th Circuit, and now in the application to the Supreme Court), the disputed issue is whether the Congress told the courts to, and whether (for that reason or some other reason) the courts should, issue an emergency order keeping Ms. Schiavo alive pending some further proceedings in the case.

There are two sub-parts of this issue, technically.

One is whether the courts can/should use the authority of the old old All Writs Act to issue such an order, without regard to the standard that governs issuance of temporary restraining orders and preliminary injunctions. To get a preliminary injunction or temporary restraining order, you've got to show (among other things) that you have a substantial likelihood of ultimately succeeding in the merits of the case. No federal judge, not even the dissenters in the 11th Circuit, has said anything substantive about any putative merit in the Schindlers' federal claims. The federal district court judge, and the panel majority, explicitly said that those claims have no substantial likelihood of success. Some people -- including the dissenters -- say that the standard should be different under the All Writs Act. But why? Why would a federal court issue an emergency order, forcing people to do things, in a case that seems clearly to have no merit whatsoever? Just so that the case can drag on for a while before ultimately being dismissed? That makes no sense to me.

The other is whether the Congress instructed the courts, in the Schiavo-specific statute, to issue such an order. Clearly, they did not. In an earlier version of the bill they were going to, but that was removed before final passage and signing. Now, the people who say that Congress did give that instruction are relying on the statutory instruction that the federal review of the claims should be "de novo." But the phrase "de novo" does not mean that there must be a trial, or anything of the sort. The phrase "de novo" means only "without deference to what another tribunal has done". In other words, a court reviewing something de novo doesn't assume that the other court's factual findings are correct, or that its view of the law was correct. But this is entirely separate from the question of whether there is a viable federal claim in the Schindlers' case. If there was a viable federal claim, and if one element of such a claim required a factual finding as to Ms. Schiavo's medical condition, then sure enough the federal court would have to decide that matter "de novo" if this statute is constitutional. But if there is no such viable federal claim -- and there isn't, as the courts have said -- then there is no need for any federal finding of that sort, "de novo" or otherwise.

That ends the law lesson for today.

posted by sam 7:13 AM 4 comments


Is there anything in the standards for issuing injunctions that recognizes the imminent mootness of the case? Or is even that factor overcome by the lack of any likely success on the merits?

By Blogger Chris, at 2:27 PM  

The question you raise, Chris, is usually rolled into the "immediate harm" prong of the test for injunctive relief. In fact, the district court in Schiavo did find that the Schindlers satisfied the "immediate harm" test, based on the irreversibility of the outcome if the injunctive relief were not granted.

But to receive injunctive relief, the Schindlers had to meet all four prongs of the test. They met three, but failed the "likelihood of success on the merits" prong.

By Anonymous Kenneth Fair, at 3:23 PM  

Forgive me, law is not my profession...

So, in other words a de novo review should then be without prejudice?

Does that mean that they (whichever court is reviewing) doesn't take into account what "another tribunal has done?" Is it ignored?

By Blogger Kitt, at 10:22 AM  

Kitt, it doesn't really mean that the federal court must, by virtue of the provision for "de novo" review, ignore what the state court has done. The reason is that some of the federal-law claims that the Schindlers have raised -- perhaps all of them -- are claims that, in order to be successful, would have to be premised on some assertion and proof that the state court judge followed procedures that were horribly flawed. For instance, the "due process" claims are, by definition, an attack on the procedures utilized in state court. So, in order to assess whether those claims have any merit, the federal court looks at the processes used in state court. This is not the same thing as inquiring whether the state court reached the "correct" finding of fact as to Ms. Schiavo's medical condition. I still have seen no reasonable argument, anywhere, that there is any viable federal claim that would require the federal court to make a finding of fact on her medical condition, de novo or otherwise.

Does this make sense? Thanks for reading.

By Blogger sam, at 11:47 AM  

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