Rest in peace, Karol Wojtyla.
Posted on 01/11/2005 6:18:33 PM PST by malakhi
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It can be ordered by Presidential proclamation. This was done at the beginning of January to honor the victims of the tsunami. So it can, and I'd guess it will, be done for the Pope.
Still no official announcement from the Vatican except "his conditioning is worsening".
Hello. Hope all is well.
In doing some initial reading, it looks like the Schindler's attorney's may have made some critical errors early on in this process. There was some discussion on anotehr thread about how the attorneys did not even mention in one pleading the bill passed out of Congress and signed by the President, and the benefits in that bill for Terri.
I think Congress knew very well that, under existing law, it was unlikely the court was going to grant temporary injunctive relief.
Regarding the Schindler's counsel, I looked at the motion they filed with the 11th Circuit on March 21, 2005, and it was a motion for a temporary restraining order. All those posting that the court violated the will of Congress overlook the fact that the motion, and the ruling, pertained to injunctive relief, rather than to the actual de novo review.
Granted, I'm a big dummy about these things, but why would the motion for the order not be related to a motion under the new law for a de novo?
It seems to make sense in simple English that if a new law which applies to my client makes it possible for me to request a new hearing of the facts of the case, that a temporary order preventing my client from being killed would be issued forthwith.
SD
SD
There is existing law governing temporary injunctive relief.
In the original draft of the bill, Congress included language which would have mandated the court issue a temporary restraining order.
Because this would have changed existing law pertaining to injunctions, in addition to impinging upon the court's constitutional prerogatives to act, the language was changed to "may issue".
The final draft stripped that paragraph from the bill entirely.
When, in debate on the Senate floor, Senator Frist was asked if the removal of this language meant that existing law governing injunctive relief applied, he said "yes".
Now, existing law governing temporary injunctive relief requires that the matter in question pass four tests. One of the tests is "irreparable injury". But that is only one of the tests. In fact, Judge Whittemore found that the Schindler's attorney had demonstrated three out of the four tests. However, in the matter of "substantial likelihood of success on the merits", Whittemore ruled that, based upon the arguments presented by the Schindler's attorneys, when reviewed from the standpoint of statutory and case law, they had NOT met this factor. Consequently, the motion for a temporary restaining order was denied.
Legally, the Schindlers could still proceed with a petition for a de novo review. From a practical standpoint, however, the upholding of Whittemore's decision by the three judge panel, the en banc denial by the 11th Circuit of their appeal, and the refusal of the Supreme Court to hear the case, there simply was insufficient time for action to proceed.
If the existing law says that a judge basically has to pre-decide the case before him before he can issue temporary restraint, then the law is stupid.
SD
Having read the arguments presented by the Schindler's attorneys, Whittemore's response, and the review of his ruling by the three judge panel, it seems pretty clear to me that their arguments were not strong.
The law on granting injunctive relief is established and settled. Congress knew the ramifications of the law when they passed the private bill for Terri. They deliberately did not include a clause mandating temporary injunctive relief. They did so knowing that the court was likely to turn down such a motion on the basis of "likelihood of success".
Part of the problem is that Congress waited so long to act. One of the purposes of a temporary restraining order is to "maintain the status quo". In this case, the status quo was that the feeding tube was already removed. So the Schindlers were, in effect, asking that the situation be returned to status quo ante.
The plaintiffs alleged five constitutional and statutory claims as the basis for "likelihood of success". A good part of their argument was rehashing their old complaints against Judge Greer.
There are at least two parties involved in any motion for temporary injunctive relief. The rights of each of the parties must be considered. If there were no "likelihood of success" test, then it would be far easier for people to file frivolous motions.
Anyway, It's about to start raining and not let up until Sunday afternoon. Have a good weekend.
SD
Understood. Judges are allowed to summarily dismiss ridiculous claims. But I don't agree that, given the action put forth to change jurisdictions and allow for a whole new hearing of the facts and the law, that it is so easy to decide.
SD
Oh, both. Without question.
It's about to start raining and not let up until Sunday afternoon.
Bummer. We had that Wednesday night and Thursday morning. We're looking pretty good for the weekend, though. Mostly sunny and highs in the 50s.
Have a good one!
I think it would have helped them demonstrate "likelihood of success" had they actually included the new facts they planned to present, rather than rehashing the same complaints about Greer.
I am jumping into waters over my head, most likely, but they weren't necessarily going to present "new facts," correct? The point of the legislation was to have a new hearing for the "old facts." Thanks for the research on the case, malakhi, your synopsis helped me a lot.
Rest in peace, Karol Wojtyla.
I echo those sentiments. Pretty decent guy really. I respect him for putting that piece of paper in the wailing wall apologizing for Christian crimes against Jews. Too bad most of his followers decline to follow suit. You never hear the slightest hint of contrition here on the FR.
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