|
Medicaid
"Reform" Proposals Not Enacted in Governor Pataki's
2005-2006 Budget
On January
18, 2005, Governor Pataki reintroduced the draconian Medicaid
reform proposals that were defeated in 2004. This year, however,
the Governor has additional power in budget negotiations due
to the decision in Silver v. Pataki, 2004 WL 2902398
(N.Y. 2004), which confirmed that the New York State budget
is controlled by the Executive branch through the appropriations
process. Unlike 2004, Governor Pataki has included the damaging
Medicaid reforms contained in the 2005 Budget Bill in his
2005 Appropriations Bill. In light of Silver v. Pataki,
this presents new challenges to the budget negotiations process.
The
Elder Law Section's Initiative in Fall 2004
Anticipating
the reintroduction of the Medicaid reform efforts in 2005,
in June of 2004, Howard S. Krooks, Esq. (Section Chair) charged
the Long Term Care Reform Committee to author a report that
our Section could utilize as a springboard to fight the anticipated
2005 Medicaid Reforms. Under the leadership of Louis Pierro,
Esq. and Robert Kurre, Esq. (and meticulous editing by Howard
Angione, Esq.), the Long Term Care Reform Committee produced
a top shelf report ("LTC Report") which is available
to all of our members on the Elder Law Section's web page
of the NYSBA website.
In particular,
Chapter 6 of the LTC Report (the brainchild of Gail Holubinka
and Louis Pierro, Esq.), is the New York State Bar Association's
cost savings alternative to the Governor's Medicaid eligibility
reforms. The proposal, aptly named the "New York State
Compact" ("Compact"), is an agreement through
which individuals can pledge 50% of their available resources
(up to a maximum of $300,000) to privately pay for their long
term care and then qualify for Medicaid while the remaining
50% of assets are protected from any future recovery. The
Compact is a viable solution to bring real dollars into the
Medicaid system and fills a void in New York State public
policy. The 2004 Budget made asset protection through the
purchase a New York State Partnership Long Term Care Insurance
Policy a viable option for those individuals that qualify
for such coverage. However, the Compact offers those that
either cannot medically qualify for or financially afford
such policies an alternative to impoverishment to achieve
similar asset protection while getting the care they need.
We encourage each of you to read the LTC Report and, in particular,
the Compact in Chapter 6 by visiting the Elder Law Section's
web page on the NYSBA website!
The
Elder Law Section's Activities to Counter the Governor's 2005
Proposals
Immediately
after the Governor released the 2005 Budget and Appropriation
Bills on January 18, 2005, our Section's Chair (after unanimous
approval from the Section's Executive Committee) charged Daniel
Fish, Esq. (Section Chair-Elect) and Steven Stern, Esq., the
Co-Chairs of the Lobbying Committee, with the task of leading
our Section's efforts to defeat the Governor's proposals as
was accomplished in 2004. In addition, the New York State
Bar Association once again approved the hiring of Harold Iselin,
Esq. from Greenberg Traurig LLP, the bar association's successful
lobbyist in 2004, to assist our efforts in the Legislature
and the Governor's office.
Daniel
Fish and Steven Stern convened the Lobbying Committee, which
consists of Howard Krooks, Esq., Louis Pierro, Esq., Ami Longstreet,
Esq., Howard Angione, Esq., Brian Tully, Esq., Ronald Fatoullah,
Esq., Rene Reixach, Esq., Robert Kurre, Esq., Michael Amoruso,
Esq., and Ronald Kennedy from the NYSBA. The Lobbying Committee
has weekly teleconferences to discuss strategy and implementation
of our Section's effort to educate the Legislature and the
Governor's office that (1) the proposed cuts hurt our senior
and disabled citizens, (2) most of the cuts require Federal
waivers which are difficult to obtain, and (3) the Compact
is a better way to address the Medicaid budget concerns and
insures that our clients retain their dignity in contributing
towards their long term care needs while avoiding total impoverishment.
On February
15, 2005, the Lobbying Committee members traveled to Albany
to attend a "Lobbying Day" organized by the association's
lobbyist, Harold Iselin. While in Albany, the Lobbying Committee
utilized a two-pronged approach to reach and educate as many
senators, assembly persons and staff about the Section's concerns
and to offer the Compact as an alternative. The first group,
Howard Krooks, Louis Pierro, Brian Tully and Gail Holubinka,
gave a presentation to both the Assembly and Senate and their
staff regarding the proposed changes and the better alternative
represented by the Compact. The remainder of the Committee
members in attendance met individually with selected Assembly
persons, Senators and staff to discuss our clients' experiences
with Medicaid and that the future may require them to contemplate
a harsh choice of bankruptcy, institutionalization or divorce.
Our Committee met with the following legislators and their
staff:
1.
Mary Ann Donnaruma
Deputy Director of Budget Studies
Assembly Ways & Means Committee
2.
Honorable Marty Golden
NYS Senate
3.
Honorable Dean Skelos
NYS Senate
4.
Mr. Joseph Sorbero
Policy Analyst
Office of Senator Dean Skelos
5.
Honorable Alexander B. Grannis
NYS Assembly
Legislative Office Building
6.
Michael Krenrich, Esq.
Office of Senator Kenneth P. LaValle
7.
Mr. Don Robbins
NYS Assembly Program & Counsel's Office
8.
Honorable Kemp Hannon
NYS Senate
9. Ms. Sharon L. Bergin
Office of Assemblyman Richard Gottfried
Since
the February 15th Lobbying Day, members of the Committee have
privately met with the offices of Senator Nicholas Spano and
Senator Dean Skelos. In addition, members of a working group
consisting of Michael Amoruso, Howard Angione, Daniel Fish,
Howard Krooks, Louis Pierro and Vincent Russo met with Senators
and staff on April 12 to discuss S.3530, the Senate bill proposed
on March 21, 2005 regarding the Compact proposal. The working
group is continuing to work with the legislature to develop
the Compact proposal into a viable alternative to the Medicaid
program.
On Tuesday,
April 12th, the Legislature and Governor completed work on
this year's State budget. Although the Legislature had enacted
a budget on March 31st, the Governor was threatening to veto
large portions of the budget unless the Legislature agreed
to compromises on several key issues. Because the Legislature
eventually agreed to such compromises, they avoided vetoes.
The net result of the budget agreement is that the Legislature
did not enact the Governor's proposed changes to Medicaid
eligibility. This year, the Governor proposed such changes
as part of both appropriations bills and Article VII (language)
bills. Because of a recent Court of Appeals decision, it was
procedurally more complicated for the Legislature to reject
the Governor's proposal. However, the Legislature developed
a constitutionally sound approach and rejected all of the
Governor's proposed cuts. The Legislature did enact the technical
changes that the Governor proposed to the Partnership program.
Thus, the State will not be enacting changes to eligibility
or seeking a waiver.
RECENT
COURT DECISIONS
THIRD
DEPARTMENT UPHOLDS DSS DETERMINATION THAT APPLICANT IS INELIGIBLE
FOR MEDICAID DUE TO PENALTY PERIOD RESULTING FROM A TRANSFER
OF$250,000 FOR NO CONSIDERATION BY APPLICANT AND SPOUSE; THAT
SPOUSE WAS NOT ESTRANGED; AND APPLICANT IS NOT ENTITLED TO
A DISCOUNT OF CONVEYANCE OF HIS 50% INTEREST IN FARM TO CHILDREN
The Columbia
County DSS determined that the applicant was not eligible
to receive Medicaid because the applicant and his wife had
transferred assets that exceeded $250,000 for no consideration.
These transfers included a gift of $10,000 by the wife to
each of the parties' 12 grandchildren, the transfer of $8,300
by the wife to the daughter in the form of a "loan",
and the applicant's conveyance of his 50 percent interest
in his farm to a son and daughter.
The Court
found there was substantial evidence to show that the $8,300
transfer was not a loan, because there was no schedule for
the payment of interest and the daughter had only repaid $500.
Also, there was substantial evidence to support DSS's determination
that the wife was not estranged. She expressed concern for
his health, visited him, and never filed for divorce at the
time that the transfers were made to the grandchildren. Lastly,
the court found there was no provision under New York Social
Services law for a fractional interest discount with respect
to the farm property. While such a discount may be available
for gift and estate tax purposes, no such concept was recognized
in the Social Services Law of New York. Matter of Campbell,
787 N.Y.S.2d 491(2005).
SURROGATE
GRANTED WILL PROPONENT'S SUMMARY JUDGMENT APPLICATION ON DUE
EXECUTION OF WILL; IT DENIED SUMMARY JUDGMENT DEINIED AS TO
WHETHER WILL PROPONENT USED UNDUE INFLUENCE OR FRAUD TO HAVE
HER MOTHER EXECUTE WILL
Surrogate's
Court found that while the proponent of will met her burden
of proof to substantiate the due execution of the decedent's
will, the objectants have presented sufficient proof to be
entitled to their day in court on the issue of undue influence.
The proponent had undertaken the confidential roles of assisting
the decedent, who was suffering with cancer, with her finances
and health care needs; proponent monitored the decedent's
conversations and would not allow others to assist her with
her health care needs; although the proponent professed to
have no knowledge about the decedent's will until after the
decedent's death, she did appear to know that the will had
been executed; her alleged lack of involvement or knowledge
about the will might be viewed as being inconsistent with
her complete involvement with the decedent's other affairs
and finances; and proof was adduced to the effect that the
proponent was successful in having the decedent's son removed
from the decedent's apartment and that the decedent was never
able to gain control over her finances even though she had
expressed a desire to do so.
There
are also controverted issues with respect to whether the proponent
made false statements about the objectants. To establish fraud,
the objectants must show that the proponent made a false statement
that caused the decedent to execute a will that disposed of
her property different from the disposition she would have
made but for the false statement (In re Estate of Coniglio,
242 A.D.2d 901, 663 N.Y.S.2d 456 [1997]). Here, the objectants
allege that false statements were made about them. The decedent's
daughter-in-law asserts that she and the decedent's son were
falsely accused of ignoring the decedent's pleas for help
when she fell. The objectant daughter avers that she was falsely
accused of forging the decedent's signature on checks. She
also alleges that the proponent made several other false statements
about her. Estate of Olga Conti, NYLJ, December 9,
2004, at page 30.
TESTAMENTARY
TRUST WAS REFORMED INTO A THIRD PARTY SUPPLEMENTAL NEEDS TRUST
BASED ON PRESUMED INTENT OF TESTATOR
A father's
will created a trust for his disabled son. The trust provided
for the payment of income to the son. As a result, the day
treatment program had to be paid with the income from the
trust instead of Medicaid. Citing Matter of Escher,
52 NY 2d 1006, the Governor's budget message at the time of
the enactment of EPTL § 7-1.12, In applying Matter
of Ciraola, NYLJ 2/9/01, the substituted judgment philosophy
of Article 81 of the Mental Hygiene Law, Matter of Shah,
95 NY 2d 148, and disagreeing with the recent decision in
Matter of Rubin, 4 Misc. 3d 634, 781 NYS2d 421, the
Broome County Surrogate decided that presumed intent is something
that a Surrogate could consider since that is the very effort
that is made under Matter of Shah and Article 81. Since
a court could substitute its reasoned judgment for what a
disabled individual would have decided if able, the presumed
intent of the testator could similarly be supposed from surrounding
circumstances. Thus a reformation was permitted. There was
no opposition by Broome County DSS. Matter of Kamp,
2005 NY Slip Op 25080; 2005 N.Y. LEXIS 363, Decided February
22, 2005.
TRUSTEE'S
USE OF A STATUTORY POWER OF ATTORNEY IS
EFFECTIVE TO CONVEY AUTHORITY
The First
Department reversed the lower court in holding that a trustee
is able to appoint an agent to act on its behalf to sign checks
by the giving of a short form statutory power to the agent.
Burton v. PNC 12 AD3d 264, 784 NYS2d 544 ( Nov 18,
2004).
ELDER
LAW POTPOURRI
On
February 7, 2005, the Birnbaum Commission released a report
proposing additional changes regarding guardianship oversight,
intestate estate administration, the public administrator
and counsel to the public administrator, and a review of the
Part 36 Reforms. Some of the recommendations include the creation
of offices of "court examiner specialists" within
the court system to monitor court examiner performance, review
work product, ensure all accountings are timely filed and
target cases out of compliance.
The
Commission would also like to bring the court examiner function
in-house.
A
copy of the report can be accessed at www.courts.state.ny.us/reports/fiduciary-2005.pdf.
Terri
Schiavo: A Legal Analysis
The
case of Theresa Schiavo is one of the most well publicized
Right to Die cases in recent times. While a proper analysis
of the case is too involved to do it justice within our e-News,
we would like to provide our members with highlights from
three of the cases that were decided last month. These cases
provide a clear history of the case and the basis of its final
disposition.
1.
IN RE: GUARDIANSHIP OF THERESA MARIE SCHIAVO, 2005 Fla.
App. LEXIS 3574, (CT OF APP Fla 2nd Dist March 16, 2005)
The Circuit Court for Pinellas County, Florida, ordered a
hospice facility to cease supplying nutrition and hydration
to an incapacitated person. Appellants, the parents of the
incapacitated person (daughter), filed a motion for relief
from judgment pursuant to Fla. R. Civ. P. 1.540(b)(4). The
trial court denied the motion; the parents appealed and filed
a motion for a stay pending appeal. Appellee guardian was
also involved in the proceedings.
The
trial court found that clear and convincing evidence established
that the daughter, who had suffered a heart attack, was in
a persistent vegetative state and that, if able to do so,
would have elected to forego the use of a feeding tube. It
ordered that nutrition and hydration no longer be provided.
In response to that order, the state legislature passed an
act pursuant to which the governor ordered a stay of the order.
The Florida Supreme Court found the act to be unconstitutional.
A
guardian appointed at the request of the governor opined that
the daughter's movements were merely reflexive and that she
was in a persistent vegetative state. The instant court rejected
the parents' claim that the judgment was void for lack of
jurisdiction. The trial court was empowered under Fla. Stat.
ch. 765.401(3) to determine what the daughter would have decided
in light of her persistent vegetative state, and the procedures
followed did not violate her right to due process or privacy.
The parents were allowed to present evidence as they were
guardians and were allowed, contrary to precedent, to file
successive and repetitive Fla. R. Civ. P. 1.540(b) motions,
none of which had merit.
The
order denying the motion is affirmed and the parents' motion
for a stay is denied.
The
Supreme Court of Florida has determined that the express right
of privacy in Fla. Const. art. I, § 23, gives both competent
and incompetent persons the right to forego life-prolonging
procedures. This constitutional protection applies not only
to persons who have the foresight and resources to prepare
a living will, but also to those whose wishes have not been
reduced to writing.
The
Supreme Court of Florida has concluded that the decision to
terminate artificial life supports is a decision that normally
should be made in the patient-doctor-family relationship.
However, the courts remain open to make these decisions under
the Florida Constitution when family members cannot agree
or when a guardian believes that it would be more appropriate
for a neutral judge to make the decision.
When
families cannot agree, the law has opened the doors of the
Florida circuit courts to permit trial judges to serve as
surrogates or proxies to make decisions about life-prolonging
procedures. It is the trial judge's duty not to make the decision
that the judge would make for himself or herself or for a
loved one. Instead, the trial judge must make a decision that
the clear and convincing evidence shows the ward would have
made for herself. Fla. Stat. ch. 765.401(3).
The
judgment was entered by the trial court in February 2000 following
an extensive trial. The trial court determined, based on clear
and convincing evidence, that Theresa Schiavo was in a persistent
vegetative state and that she herself would elect to forego
further use of a feeding tube. This court affirmed that judgment.
See In re: Guardianship of Schiavo, 780 So. 2d 176 (Fla. 2d
DCA 2001) (Schiavo I).
As
a result of an earlier motion for relief from judgment, we
required the trial court to reconfirm that medical science
offered no meaningful treatment for her condition. In re:
Guardianship of: Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001)
(Schiavo III). The trial court decided not only to reconfirm
that issue but also to review its earlier decision that Mrs.
Schiavo was in a persistent vegetative state. Following another
extensive hearing at which many highly qualified physicians
testified, the trial court denied the motion for relief from
judgment. This court affirmed that decision. In re: Guardianship
of Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003) (Schiavo IV).
The
trial court's decision does not give Mrs. Schiavo's legal
guardian the option of leaving the life-prolonging procedures
in place. No matter who her guardian is, the guardian is required
to obey the court order because the court, and not the guardian,
has determined the decision that Mrs. Schiavo herself would
make.
Following
the exhaustion of all appellate review of both the final judgment
that was entered in February 2000 and the order denying the
subsequent motion for relief from judgment, the trial court
ordered that, on October 15, 2003, the hospice facility must
cease supplying nutrition and hydration through Mrs. Schiavo's
feeding tube. The hospice facility obeyed this order. On October
21, 2003, the legislature enacted chapter 2003-418, and the
Governor signed the act into law. Pursuant to this new act,
the Governor ordered a stay, which both this court and the
trial court honored. Thus, the hospice facility restored the
supply of nutrition and hydration through the feeding tube.
Thereafter, the supreme court unanimously held that chapter
2003-418 was unconstitutional as a violation of the separation
of powers under the Florida Constitution. Bush v. Schiavo,
885 So. 2d 321 (Fla. 2004).
Before
chapter 2003-418 was held unconstitutional, the Governor requested
the Chief Judge of the Sixth Judicial Circuit to appoint a
special guardian ad litem for Mrs. Schiavo. Chief Judge David
Demers honored that request and appointed a guardian ad litem.
The guardian, Dr. Jay Wolfson, has degrees in both law and
public health. He submitted a lengthy report to both the court
and the Governor. In his summary, Dr. Wolfson stated, in part:
The
[guardian ad litem] concludes that the trier of fact and the
evidence that served as the basis for the decisions regarding
Theresa Schiavo were firmly grounded within Florida statutory
and case law, which clearly and unequivocally provide for
the removal of artificial nutrition in cases of persistent
vegetative states, where there is no advance directive, through
substituted/proxy judgment of the guardian and/or the court
as guardian, and with the use of evidence regarding the medical
condition and the intent of the parties that was deemed, by
the trier of fact to be clear and convincing.
Subsequently,
the Schindlers filed a motion in the trial court, pursuant
to Florida Rule of Civil Procedure 1.540(b)(4), for relief
from the judgment, claiming that the trial court's February
2000 judgment is void. This is one of the exceptional grounds
on which a judgment that is more than one year old may be
challenged. This ground, however, is generally limited to
circumstances in which the trial court enters a judgment when
it lacks jurisdiction over the subject matter of the case
or jurisdiction over the parties.
In
this case, it is beyond any question that the trial court
obtained lawful jurisdiction over the subject matter of this
guardianship and the person of Mrs. Schiavo at the inception
of the guardianship in 1990. Thus, it is doubtful that the
Schindlers' most recent motion for relief from judgment contains
even a facially sufficient claim.
In
their brief, the Schindlers first argue that the judgment
is void because the trial court, and not a guardian, made
the decision as to what Mrs. Schiavo would elect to do in
light of her persistent vegetative state. Despite the well-established
law authorizing this process as a method to fulfill the patient's
right of privacy under the Florida Constitution, the Schindlers
argue that this process provides insufficient due process
and violates Mrs. Schiavo's right to privacy. The right of
the trial judge to make this decision for Mrs. Schiavo, relying
on clear and convincing evidence of the decision that she
herself would have made, is a matter that the Schindlers raised
in the first appeal. This court expressly rejected these arguments
several years ago. See Schiavo I, 780 So. 2d at 179. [*9]
Thus, these arguments are not only issues that would not render
a judgment void, but they are also issues that have long been
resolved in this case.
The
Schindlers also argue that the judgment is void because Mrs.
Schiavo was denied a full and fair opportunity to defend her
rights in this case. As we have explained in the past, this
is not a case where the trial court validated the guardian's
decision for the ward without a full and independent inquiry.
Instead, both Mr. Schiavo and the Schindlers were allowed
to present evidence to the trial court as if each were her
guardian. Id. The trial court then made its decision pursuant
to law and based upon a heightened standard of proof. That
decision has been subject to appeals and postjudgment scrutiny
of all varieties, and it remains a valid judgment pursuant
to the laws and the constitution of this state. Not only has
Mrs. Schiavo's case been given due process, but few, if any,
similar cases have ever been afforded this heightened level
of process.
We
note that the [HN4] case law generally allows a party to file
only one motion for relief under rule 1.540(b). See Berman,
supra P 540.5(b). Indeed, courts have taken the position [*10]
that they lack authority "to entertain a second motion
for relief from judgment which attempts to relitigate matters
settled by a prior order denying relief." Steeprow Enters.,
Inc. v. Lennar Homes, Inc., 590 So. 2d 21, 23 (Fla. 4th DCA
1991) (citing Atlas v. City of Pembroke Pines, 441 So. 2d
652, 652 (Fla. 4th DCA 1983), 450 So. 2d 485 (Fla. 1984));
accord Mailcoat v. LaChappelle, 390 So. 2d 481, 482 (Fla.
4th DCA 1980). Because of the nature of this case, neither
the trial court nor this court has enforced these general
rules. The Schindlers have filed numerous motions, but they
have failed to present any lawful basis for relief from judgment.
Dr.
Wolfson, the guardian who was appointed at the request of
the Governor, visited Mrs. Schiavo many times in 2003. He
was unable to independently [*11] observe any "consistent,
repetitive, intentional, reproducible interactive and aware
activities." His report does not challenge the now well-established
medical diagnosis that Mrs. Schiavo's movements are merely
reflexive. As he explained: "This is the confusing thing
for the lay person about persistent vegetative states."
2. In the Matter of Theresa Schiavo, 2005 U.S. Dist.
LEXIS 4265,
(M.D. Fla March 22, 2005)
The
parents' motion for a temporary restraining order was denied.
In response to an order of defendant state court judge directing
defendant husband/plenary guardian to discontinue nutrition
and hydration for his incapacitated wife, the wife's parents,
sued pursuant to an Act for the Relief of the Parents of Theresa
Marie Schiavo, Pub. L. No. 109-3 (March 21, 2005).
The court based its decision on the TRO analysis rather than
the Act's constitutionality. That the wife would die without
temporary injunctive relief was an irreparable injury that
outweighed any harm a TRO could cause as well as any harm
that could be caused by feeding tube reinsertion. The TRO
would not be adverse to public interest. However, the parents
failed to show a substantial likelihood of success on the
merits. The contention that the presiding state court judge's
dual and simultaneous role as judge and health-care surrogate
denied the wife a fair and impartial trial ignored the judge's
statutory role as judicial fact-finder and decision-maker.
The state court judge was not acting as an advocate merely
because his rulings were unfavorable to the parents' claim.
Applying the Mathews due process balancing test, the instant
court concluded the wife's life and liberty interests were
adequately protected by the extensive state court process.
Appointing another guardian-ad-litem could not have offered
more protection. For the same reasons, the equal protection
claim also failed. The free exercise claims failed because
the parents did not show the requisite state action.
The
plain language of the Act for the relief of the parents of
Theresa Marie Schiavo (Act) establishes jurisdiction in the
federal court to determine de novo any claim of a violation
of any right of Theresa Schiavo within the scope of the Act.
The Act expressly confers standing to Ms. Schiavo's parents
to bring any such claims.
In
resolving a plaintiff's motion for temporary restraining order,
the court is limited to a consideration of the constitutional
and statutory deprivations alleged by the parents in the complaint
and motion.
Florida's
statutory scheme, set forth in Fla. Stat. ch. 765, contemplates
a process for designation of a proxy in the absence of an
executed advance directive and provides for judicial resolution
of disputes arising concerning decisions made by the proxy.
Fla. Stat. ch. 765.401(1). Where a decision by the proxy is
challenged by the patient's other family members, it is appropriate
for the parties to seek "expedited judicial intervention."
Fla. Stat. ch. 765.105.
In
Florida, where two suitable surrogate decision-makers cannot
agree on the proper decision as to the continuation of life
support, the guardian may invoke the trial court's jurisdiction
to allow the trial court to serve as the surrogate decision-maker.
The
differences between the choice made by a competent person
to refuse medical treatment, and the choice made for an incompetent
person by someone else to refuse medical treatment, are so
obviously different that the State is warranted in establishing
rigorous procedures for the latter class of cases which do
not apply to the former class.
In
order to succeed on either a 42 U.S.C.S. § 2000-cc(a)
claim or a First Amendment Free Exercise claim, plaintiffs
must establish that the defendants were state actors. The
fact that claims have adjudicated by a state court judge does
not provide the requisite state action for purposes of the
statute or the Fourteenth Amendment.
3.
In re: THERESA MARIA SCHIAVO, 2005 U.S. App. LEXIS
4702
(11th Cir March 23, 2005)
Terri
Schiavo's parents moved for a temporary restraining order
(TRO) in the United States District Court for the Middle District
of Florida, seeking to require reestablishment of nutrition
and hydration to their incapacitated daughter. The district
court denied the motion, and the parents appealed. The parents
also petitioned the court of appeals to grant the same injunctive
relief under the All Writs Act, 28 U.S.C.S. § 1651(a).
The
parents' suit challenged an order by defendant state court
judge directing removal of nutrition and hydration from the
daughter. Congress enacted Pub. L. No. 109-3 to enable the
parents to bring the federal court suit. The court of appeals
found that the district court did not abuse its discretion
in finding that the parents had failed to show a substantial
case on the merits and were therefore not entitled to a TRO.
The parents argued that Pub. L. No. 109-3 required that injunctive
relief be granted in order to allow them to have a full trial
on the merits of their claims, but that Act did not change
the law concerning issuance of temporary or preliminary relief.
In fact, Congress specifically rejected provisions that would
have mandated the grant of a pretrial stay. The court of appeals
refused relief under the All Writs Act, which was not available
where the relief sought was in essence a preliminary injunction.
The parents could not use the All Writs Act to circumvent
the requirements for preliminary injunctions.
Although
a court of appeals ordinarily does not have jurisdiction over
appeals from orders granting or denying temporary restraining
orders, in circumstances when a grant or denial of a temporary
restraining order might have a serious, perhaps irreparable,
consequence, and can be effectually challenged only by immediate
appeal, the court may exercise appellate jurisdiction. In
such circumstances the court treats temporary restraining
orders as equivalent to preliminary injunctions or final judgments,
either of which are appealable. 28 U.S.C.S. § §
1291, 1292(a)(1).
There
are four factors to be considered in determining whether temporary
restraining or preliminary injunctive relief is to be granted,
which are whether the movant has established: (1) a substantial
likelihood of success on the merits; (2) that irreparable
injury will be suffered if the relief is not granted; (3)
that the threatened injury outweighs the harm the relief would
inflict on the non-movant; and (4) that entry of the relief
would serve the public interest.
Requests
for emergency injunctive relief are not uncommon in federal
court and sometimes involve decisions affecting life and death.
Controlling precedent is clear that injunctive relief may
not be granted unless the plaintiff establishes the substantial
likelihood of success criterion. The parents with questionable
claims will not meet the likelihood of success criterion.
A
court of appeals reviews a district court's denial of temporary
injunctive relief only for an abuse of discretion. This 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 factfinding, or if it reaches
a conclusion that is clearly unreasonable or incorrect. Short
of that, an abuse of discretion standard recognizes there
is a range of choice within which the court of appeals will
not reverse the district court even if the court of appeals
might have reached a different decision.
The
United States Court of Appeals for the Eleventh Circuit does
not believe that the text of Pub. L. No. 109-3 limits or eliminates
a court's power to grant temporary or preliminary relief.
Exactly the contrary. The Eleventh Circuit's position is that
the Act, which does not mention that subject, and which was
amended to remove a provision that would have changed the
law, does not affect it at all.
To
interpret Pub. L. No. 109-3 as requiring that temporary or
preliminary relief be entered regardless of whether it is
warranted under pre-existing law would go beyond reading into
the Act a provision that is not there. It would require a
court to read into the Act a provision that Congress deliberately
removed in order to clarify that pre-existing law did govern
this issue. |
Elder Law eNews
