Posted on 03/21/2005 2:45:19 PM PST by AntiGuv
PINELLAS PARK, Fla. (AP) -- Armed with a new law rushed through Congress over the weekend, the attorney for Terri Schiavo's parents pleaded with a judge Monday to order the brain-damaged woman's feeding tube reinserted.
U.S. District Judge James Whittemore did not immediately make a ruling after the two-hour hearing, and he gave no indication on when he might act on the request.
The hearing came three days after the feeding tube was removed. Doctors have said Schiavo could survive one to two weeks without the tube.
During the hearing, David Gibbs, an attorney for the parents, said that forcing Terri Schiavo to die by starvation and dehydration would be "a mortal sin" under her Roman Catholic beliefs.
"It is a complete violation to her rights and to her religious liberty, to force her in a position of refusing nutrition," Gibbs told Whittemore.
But the judge told Gibbs that he still wasn't completely sold on the argument. "I think you'd be hard-pressed to convince me that you have a substantial likelihood" of the parents' lawsuit succeeding, the judge said.
George Felos, one of the attorneys for husband Michael Schiavo, told Whittemore that the case has been aired thoroughly in state courts and that forcing the 41-year-old severely brain damaged woman to endure another re-insertion of the tube would violate her civil rights.
"Every possible issue has been raised and re-raised, litigated and re-litigated," Felos said. "It's the elongation of these proceedings that have violated Mrs. Schiavo's due process rights."
Terri Schiavo's feeding tube was removed at 1:45 p.m. Friday, the third such time she had begun what Felos described as "her dying process." On both previous occasions, the tube was re-inserted by court order.
But the Republicans and the president can claim to have done all they can once Terri has been successfully murdered. This is a sop thrown to us social conservatives.
Correct.
He's going to rule against the parents. He's busy writing an opinion in which he blasts Congress for passing an unconstitutional law and interfering with the "Constitutional right of privacy."
Ok..so don't you find his report positive to her case?
Well then get on deck with your sword so you can be put in jail like the raving lunatic you have become. I truly resent someone calling me names while they espouse violent domestic revolt via the armed forces. Oh and you have a great sense of history, believing that an army is going to establish moral law where courts and laws and Congresses have failed. Let's see the list of moral military dictatorships throughout history.
Without food and water.
C. REQUIREMENTS FOR INJUNCTIVE RELIEF
1. [13:38] Requirements Generally: An injunction is an equitable remedy. "The basis for injunctive relief (preliminary or permanent) in the federal courts has always been irreparable injury and the inadequacy of legal remedies." [> Weinberger v. Romero-Barcelo (1982) 456 U.S. 305, 312, 102 S.Ct. 1798, 1803 (emphasis and parentheses added); > Stanley v. University of So. Calif. (9th Cir. 1994) 13 F.3d 1313, 1320]
a. [13:39] Balancing required: An injunction never issues as a matter of course: "In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest . . . a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law." [> Amoco Production Co. v. Village of Gambell, Alaska (1987) 480 U.S. 531, 107 S.Ct. 1396, 1402 (emphasis added); > Dogloo, Inc. v. Doskocil Mfg. Co., Inc. (CD CA 1995) 893 F.Supp. 911, 917 (citing text)]
b. [13:40] Compare--lesser statutory standards: Congress may intervene and guide or control exercise of the court's discretion on a lesser showing. Thus, the requirements of "irreparable injury" and "inadequate legal remedies" need not be satisfied to enjoin violation of a statute that specifically provides for injunctive relief. [> E.E.O.C. v. Cosmair, Inc. (5th Cir. 1987) 821 F.2d 1085; > United States v. Estate Preservation Services (9th Cir. 2000) 202 F.3d 1093, 1098--traditional requirements for equitable relief not necessary because > 26 USCA § 7408 expressly authorized issuance of injuction]
(1) Application
· [13:40.1] When a gasoline company refuses to renew a service station dealer's franchise and the franchisee sues to preserve the franchise, the Petroleum Marketing Prices Act (> 15 USCA § 2801 et seq.) makes a preliminary injunction mandatory if a "fair ground for litigation" is shown and the "balance of hardships" tips in favor of the franchisee. The franchisee need not demonstrate a likelihood of success on the merits and irreparable harm to its interest from denial of relief. [> Hilo v. Exxon Corp. (9th Cir. 1993) 997 F.2d 641, 643]
· [13:41] In the Endangered Species Act (> 16 USCA § 1531 et seq.), "Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests." [> National Wildlife Fed. v. Burlington Northern R.R., Inc. (9th Cir. 1994) 23 F.3d 1508, 1511]
· [13:41.1] The Federal Trade Commission Act allows the FTC to obtain a preliminary injunction against fraudulent business practices "(u)pon a proper showing that, weighing the equities and considering the Commission's likelihood of ultimate success, such action would be in the public interest" (> 15 USCA § 53(b)). This "places a lighter burden on the Commission than that imposed on private litigants by the traditional equity standard; the Commission need not show irreparable harm to obtain a preliminary injunction." [> Federal Trade Comm'n v. Affordable Media, LLC (9th Cir. 1999) 179 F.3d 1228, 1233 (emphasis added; internal quotes omitted)]
(2) [13:42] Statute must be clear: Courts do not lightly assume Congress intended to depart from established principles. Unless a statute in so many words, or by necessary and inescapable inference, restricts the court's discretion, such limitations will not be inferred. [> Weinberger v. Romero-Barcelo, supra, 456 U.S. at 314, 102 S.Ct. at 1804; > Miller v. California Pac. Med. Ctr. (9th Cir. 1993) 991 F.2d 536, 541-542]
2. [13:43] Additional Requirements for TRO or Preliminary Injunction: All courts agree that plaintiff must satisfy the general equitable requirements above by showing a significant threat of "irreparable injury" and that legal remedies are "inadequate." [> Arcamuzi v. Continental Air Lines, Inc. (9th Cir. 1987) 819 F.2d 935, 937]
However, applications for preliminary relief (TRO or preliminary injunctions) must meet additional criteria. These vary from circuit to circuit. For example, various panels of the Ninth Circuit formulate the test two ways:
a. [13:44] Traditional test: Some courts utilize the so-called "traditional test," which requires that plaintiff establish the following four factors:
· A likelihood of success on the merits;
· A substantial threat that plaintiff will suffer irreparable injury if the injunction is denied;
· The threatened injury outweighs any damage the injunction might cause to defendant (i.e., the balance of hardships favors the plaintiff-applicant); and
· The injunction will not disserve the public interest. [> Sugar Busters, LLC v. Brennan (5th Cir. 1999) 177 F.3d 258, 265; > CityFed Fin'l Corp. v. Office of Thrift Supervision (DC Cir 1995) 58 F.3d 738, 746; > Raich v. Ashcroft (9th Cir. 2003) 352 F.3d 1222, 1227 (citing text)]
(1) [13:44.1] Evidentiary burden: The moving party (plaintiff) must persuade the court as to the existence of all four factors. Courts differ, however, on how strong an evidentiary showing is required. [See > McDonald's Corp. v. Robertson (11th Cir. 1998) 147 F.3d 1301, 1306--movant must "clearly" establish each of the above factors; compare > Michigan State AFL-CIO v. Miller (6th Cir. 1997) 103 F.3d 1240, 1249--"Not all these factors fully need be established for an injunction to be proper"; > CityFed Fin'l Corp. v. Office of Thrift Supervision, supra, 58 F.3d at 746--"If arguments for one factor are particularly strong, injunction may issue even if arguments in other areas are rather weak"]
b. [13:45] Alternative test: Other courts utilize the "alternative test." This permits plaintiff to meet its burden by showing either:
· A combination of probable success on the merits and the possibility of irreparable injury; or
· Serious questions as to these matters and the balance of hardships tips sharply in plaintiff's favor. [> Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc. (9th Cir. 2001) 240 F.3d 832, 839-840]
The court must also weigh whether the public interest favors issuance of the injunction. [> Southwest Voter Registration Ed. Project v. Shelley (9th Cir. 2003) 344 F.3d 914, 917; see > ¶13:76]
(1) [13:45a] "Serious questions": "Serious questions" means questions that involve a fair chance of success on the merits that cannot be resolved one way or the other at the hearing on the injunction, "and as to which the court perceives the need to preserve the status quo lest one side prevent resolution of the questions or execution of any judgment by altering the status quo." [> Republic of Philippines v. Marcos (9th Cir. 1988) 862 F.2d 1355, 1362; see also > Bay Area Addiction Research & Treatment, Inc. v. City of Antioch (9th Cir. 1999) 179 F.3d 725, 732]
c. [13:46] Tests not inconsistent: Under either test, the analysis "creates a continuum: the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor." [> Southwest Voter Registration Ed. Project v. Shelley (9th Cir. 2003) 344 F.3d 914, 918]
Or, as stated in another case: "The critical element in determining the test to be applied is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." [> State of Alaska v. Native Village of Venetie (9th Cir. 1988) 856 F.2d 1384, 1389 (emphasis added)]
It follows that the "balance of harm" evaluation should precede the "likelihood of success" analysis . . . because until the balance of harm has been determined the court cannot know how strong and substantial must be plaintiff's showing of likely success on the merits. [> Direx Israel, Ltd. v. Breakthrough Med. Group (4th Cir. 1991) 952 F.2d 802, 813-814; > Simula, Inc. v. Autoliv, Inc. (9th Cir. 1999) 175 F.3d 716, 725 --preliminary injunction may be granted only when moving party has demonstrated a significant threat of irreparable injury irrespective of the magnitude of the injury]
[13:46.1-46.4] Reserved.
d. [13:46.5] Heightened burden in certain cases: In some cases, the movant must show that the four factors listed in > ¶13:44 weigh "heavily and compellingly in movant's favor" before a preliminary injunction may issue. [> Kikumura v. Hurley (10th Cir. 2001) 242 F.3d 950, 955]
This "heavily and compellingly" burden applies to preliminary injunctions that:
· disturb the status quo (see > ¶13:78); or
· are mandatory as opposed to prohibitory (because a mandatory injunction always alters the status quo by commanding a positive act; see > ¶13:79.5);
· provide substantially all the relief the movant would obtain after a full trial on the merits (see > ¶13:79.10). [> Kikumura v. Hurley, supra, 242 F.3d at 955]
That's not what I have been espousing. Not at all. But we already observe that you are not a careful reader.
Hypothetically, if, (and this is a big IF) a person happens to injure another person causing them to have an injury which renders them disabled - if that person were to just happen to think that they would get by with it if they happened to manage to have the injured person killed - well, their lack of peace would only just begin, in spades.
Having stated this, I do not know what happened to Terri to cause this condition which she is in. Shiavo is innocent unless proven guilty, of course, so I'm certainly not accusing him of anything.
Ok then we now are in agreement and I apologize for my misunderstanding.
Maybe they tried to, but Greer did not allow it. Seems he did a lot of that.
It is a continuum thingie, but since the Terri case is factually driven it cannot be characterized as Terri's parents having a frivolous claim. Above are the ins and outs on the matter, which in the end kind of suggest that the court can do whatever the hell it wants within wide limits. But with an impending corpse, in the case, it really can't.
Your definition of a rebellion is even more expansive than Lincoln's.
Courage.
You should know that the order to murder and innocent is an illegal order, no matter what process it has followed.
Well, sadly, the court can do what it wants. Even on a life and death issue. My main complaint is the time the judge is taking. He knows there will be an attempt to appeal his decision either way. He can write a 100 page opinion, but it isn't going to say anything new he couldn't have said on the record at a hearing this morning. Whichever way he rules, he is not being respectful of the emergency nature of this situation. As the night drags on I find that very wrong.
Uh, do you have my house bugged??? My beloved said something along those lines. Without the ..ahem.. slapping part.
Don't misunderstand me: He probably would say worse if it were not me he was talking to, and our babies (two VERY smart dogs) weren't around.
Come to think of it, I think he was more worried about the babies picking up his bad language than offending me!
Yes, this judge is in a pickle. Oh, my. Do you realize just how many pithy sayings revolve around food??
Ever since I've heard about this case I've not taken food for granted.
No pun intended.
Wow I didn't know that was an option. Just talked to hubby/lawyer and he says this would be likely.
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