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The case gripped the nation’s attention. Television news crews camped out in Florida, waiting to see what the courts would do next. A family was at war with each other. At the 11th U.S. Circuit Court of Appeals in Atlanta, a three-judge panel issued a preliminary injunction, stopping everything until the court had time to make a full review of the facts and the law. Moving forward, the court explained, would harm no one and would deny the subject of the case “something of great value: his day in a court of law.” This was in 2000, in the case of six-year-old Cuban refugee Elian Gonzalez — not this week in the case of brain-damaged Terri Schiavo. Judge Charles R. Wilson was on the panel in both matters, and both times he voted for the injunction. In 2000 he was part of a unanimous panel that kept Gonzalez in the country until the court heard oral arguments and, eventually, ruled in favor of the father who wanted the boy returned to Cuba. In the Schiavo case, Wilson was on the losing end of a 2-1 decision issued at 2:30 Wednesday morning. Over Wilson’s dissent, Judges Edward E. Carnes and Frank M. Hull denied a request by Schiavo’s parents, Robert and Mary Schindler, that the court order doctors to reinsert a feeding tube into their 41-year-old daughter, who has been in a vegetative state for 15 years. The parents say that removing the feeding tube violates their daughter’s constitutional rights and the courts have a duty to keep her alive while her claim is reviewed under a bill passed by Congress early Monday. The measure authorizes the federal courts to examine her claim that removing the tube violates her rights to a fair and impartial trial, due process, equal protection under the law, and freedom of religion. On Wednesday afternoon, the full 11th Circuit rejected an emergency petition by Schiavo’s parents to reconsider the panel’s decision. Seven judges would have had to vote for reconsideration for the court to review the claim. Only Wilson and Judge Gerald B. Tjoflat dissented publicly from the en banc rejection. The 11th Circuit does not disclose how judges voted on en banc review questions, although judges may choose individually to make their votes known, as Tjoflat and Wilson did in their dissent. NEXT STOP: JUSTICE KENNEDY The Schindlers likely will turn to Justice Anthony M. Kennedy of the U.S. Supreme Court, the liaison justice between the high court and the 11th Circuit. He could order the tube reinserted, but his decision also could be overruled by the full nine-member court. But as the case hovered in Atlanta Wednesday, it’s likely that the competing analyses of the Carnes and Hull majority and Wilson’s dissent laid the groundwork for their colleagues’ assessment of the case. At issue in both the Gonzalez and Schiavo cases were the four factors courts consider when reviewing requests for temporary injunctions: The likelihood the requesting party will prevail on the merits of the case; the irreparable harm suffered if an injunction is not issued; harm suffered by the opposing side as a result of the injunction; and whether the public interest would be served by the injunction. THE GONZALEZ CASE In the Gonzalez case, Wilson, along with Judges J.L. Edmondson and Joel F. Dubina, found that the family members who wanted Elian to remain in the country had presented “a substantial case on the merits,” particularly because there was evidence the 6-year-old had told a mental health professional he did not want to return to Cuba. Gonzalez v. Reno, No. 00-11424-D (11th Cir., April 19, 2000). As the panel had found in the Gonzalez case, Wilson argued in his Schiavo dissent that the Schindlers had to demonstrate a “substantial likelihood, not a substantial certainty” to get an injunction. But Carnes and Hull responded that they agreed with U.S. District Judge James D. Whittemore in Tampa, Fla., who early Tuesday morning decided the Schindlers had failed to demonstrate a substantial case on the merits. The Gonzalez case had attracted great attention from politicians, but it did not result in anything like the law passed last weekend by Congress, authorizing the Tampa federal court to review the Schindlers’ claims. Carnes and Hull sparred with Wilson over the true meaning of the new statute, known as Public Law No. 109-3. Carnes and Hull said they rejected the Schindlers’ argument that the law “mandates that injunctive relief be granted to enable them to have a full trial on the merits of their claims.” Instead, the majority judges found, by looking at a discussion between Sens. Carl Levin, D-Mich., and Majority Leader Bill Frist, R-Tenn., considering the bill last week that Congress “specifically rejected provisions that would have mandated” an order requiring the feeding tube be reinserted. Wilson countered that “The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes. … Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims.” DECIPHERING CONGRESS’ INTENT Charles Shanor, who teaches constitutional law at Emory University, said it was not unusual for judges to try to decide exactly what Congress meant when interpreting a law that is silent about an issue before the court. “Whether the statements of two members of Congress who had a colloquy on the issue is a fair synopsis of what the Congress as a whole meant is more controversial,” added Shanor. Atlanta appellate lawyer David A. Webster said, “In the abstract, it is surprising to find the majority rely upon legislative history, especially given the Supreme Court’s recent emphasis on statutory text.” But Webster added that the Schiavo bill is such an obvious break with so much of general federal procedure that any court would want to look at what Congress said to try to figure out what it meant. Staff reporter Meredith Hobbs contributed to this report.

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