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  #21  
Old 04-01-2005, 02:42 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

Whatever the "usual" standard in the case of a TRO may be, in this case in particular the standard you suggest does not work. It is a standard judicial axiom that you do not interpret laws in such a manner that they will be rendered meaningless. The fact that the legislation provided for a de novo review of this case coupled with the fact that Terry would die prior to any final resolution of the matter make the standard used by the court inappropriate.

Given the unique nature of this case I fail to see why "precedents" of more general TRO cases apply here. What would be interesting is the question of whether there was a case where such a standard was applied when a stay of execution in a capital case was requested and denied PRIOR to any federal review of the case where federal jurisdiction was proper.

I'll acknowledge that your position on this matter happens to currently be the law in the federal circuit that Florida sits by virtue of the opinion of 2 out of 3 judges. I, for one, found the opinion of the dissenting justice and the arguments supplied by the same to be more compelling. I also suspect that there are many federal judges that would also agree.
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  #22  
Old 04-01-2005, 03:08 PM
elwoodblues elwoodblues is offline
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Default Re: Ideal System...Schiavo as an illustration

[ QUOTE ]
It is a standard judicial axiom that you do not interpret laws in such a manner that they will be rendered meaningless

[/ QUOTE ]

Right, and the law wouldn't be meaningless --- it would fit (as all new laws do) within the confines of larger processes and laws. The family could (and would) have had a full de novo hearing had they met the Temporary Injunction standards. You just want special new rules created for this particular case --- essentially asking for an activist court to ignore existing precedent and law. Fortunately, the judge's in this case have consistently had more self-control and integrity than their respective legislatures and executive branch actors.
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  #23  
Old 04-01-2005, 03:29 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

You speak of precedents where there are none - this is a unique case. And the law becomes meaningless without the grant of injunctive relief - news flash - Terry Schiavo will die without it, so what purpose in your mind is served by the law congress enacted last weekend?

Question: If congress passes a law requiring review of a death penalty case (which case was never reviewed by the federal courts in the first place) and a federal judge stays a state execution scheduled for a few days following the enactment of the new federal law using the logic of the dissenter in the Schiavo case - in your mind is that judge being an "activist" judge or following the law?
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  #24  
Old 04-01-2005, 03:41 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

"Fortunately, the judge's in this case have consistently had more self-control and integrity than their respective legislatures and executive branch actors. "

I also suspect that many judges see themselves in this same arrogant light. This is why many see the judiciary as being out of line. This case is yet another example of this. If the Florida legislature were to now enact legislation that provides for a "no will/no kill" standard in cases such as these (a standard other states have adopted), my guess is the SCOFLAW would see themselves as having authority to pass on the constitutionality of such laws which are plainly nonjusticiable.

The reputation that the courts are getting for "legislating from the bench" is well earned, notwithstanding the fact that some posters here seem to find such claims tiresome and overstated. Quite simply, they are not.
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  #25  
Old 04-01-2005, 03:44 PM
elwoodblues elwoodblues is offline
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Default Re: Ideal System...Schiavo as an illustration

[ QUOTE ]
You speak of precedents where there are none - this is a unique case. And the law becomes meaningless without the grant of injunctive relief - news flash - Terry Schiavo will die without it, so what purpose in your mind is served by the law congress enacted last weekend?

[/ QUOTE ]



After temporary relief is granted a full de novo review of the case is held at the district court level.

There is precedent for what standards to apply for a temporary injunction. Just because this case is somewhat unique (though similar to a capital case) doesn't mean that the precedent doesn't apply. I will say, once again, that if congress wanted a different temporary relief standard, they could have legislated one. They didn't.

[ QUOTE ]
Question: If congress passes a law requiring review of a death penalty case (which case was never reviewed by the federal courts in the first place) and a federal judge stays a state execution scheduled for a few days following the enactment of the new federal law using the logic of the dissenter in the Schiavo case - in your mind is that judge being an "activist" judge or following the law?

[/ QUOTE ]

It depends on if they were following existing law and precedent. If the standard for a temporary stay were met, then they would not be an activist judge.
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  #26  
Old 04-01-2005, 03:49 PM
elwoodblues elwoodblues is offline
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Default Re: Ideal System...Schiavo as an illustration

[ QUOTE ]
The reputation that the courts are getting for "legislating from the bench" is well earned...

[/ QUOTE ]

just a tad bit ironic coming from someone who wanted the federal courts to change the temporary injunction standards for this particular case.

[ QUOTE ]
I also suspect that many judges see themselves in this same arrogant light.

[/ QUOTE ]

I hope they do. If they are the only ones following the law and the ideals and principles of the founding documents, then they should be very proud of themselves (if not a bit arrogant.)

[ QUOTE ]
If the Florida legislature were to now enact legislation that provides for a "no will/no kill" standard in cases such as these (a standard other states have adopted), my guess is the SCOFLAW would see themselves as having authority to pass on the constitutionality of such laws which are plainly nonjusticiable.


[/ QUOTE ]

Of course they have the right to pass on the constitutionality of it. That's their job. If Florida wants to require a living will, then they should do it through the legislature. If the legislature doesn't do that and they maintain that people's intentions if not documented in a living will can be found from past statements, then people should stop bitching about "hearsay" evidence proving intent.
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  #27  
Old 04-01-2005, 03:56 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

"It depends on if they were following existing law and precedent. If the standard for a temporary stay were met, then they would not be an activist judge."

I submit that the standard you suggest should be applied, based upon "precedent," could never be met - neither in the Schiavo case nor in my hypothetical. The basis for the court's determination in Schiavo that there was not a substantial likelihood of prevailing on the merits was based upon the fact that other Florida state courts had passed on the law. Such would always be the case in my hypothetical, as otherwise federal intervention would not be necessitated in the first instance. For that reason I think the federal law was rendered meaningless by the courts refusal to allow injunctive relief (i.e. the de novo standard itself had no meaning based upon the court's analysis - it was a moot portion of the new law by the court's application of the standard they applied).

I think we both see where the other is coming from, though, so let's just agree to disagree.

I would be curious whether there were any cases comparable to my hypothetical in a capital case, though. My guess is the answer is no, but just curious if you were aware of any.
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  #28  
Old 04-01-2005, 04:02 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

"Of course they have the right to pass on the constitutionality of it. That's their job."

I disagree. If the legislature makes the determination that a "no will/no kill" standard is necessary to ensure that an individual's right not to be deprived of life without due process of law is maintained, why are judges (possibly unelected and not subject to accountabillity of the people in the district they serve) uniquely qualified to find otherwise.
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  #29  
Old 04-01-2005, 04:13 PM
elwoodblues elwoodblues is offline
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Default Re: Ideal System...Schiavo as an illustration

Because that is part of the checks and balances that we have in our sytem. Them being unelected is a plus. You (at least I) don't want the meaning of what is constitutional being directly based on what is popular. Granted, judges still are influenced by the outside, but to a much lesser extent than elected officials.
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  #30  
Old 04-01-2005, 04:17 PM
KellyRae KellyRae is offline
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Default Re: Ideal System...Schiavo as an illustration

"just a tad bit ironic coming from someone who wanted the federal courts to change the temporary injunction standards for this particular case"

Again, I don't see the courts as "changing" anything. This case was decided wrongly based upon standards of judicial interpretation which are applied in the here and now. The fact that you disagree with my opinion as to the proper manner for resolving this case does not mean I advocate what you perceive to be "judicial activism."
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