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UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
REPORTER'S RECORD
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MICHELLE KELLER & NEW
AMSTERDAM CITY GENERAL
HOSPITAL,
Petitioners,
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v.
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) CASE NO. 09-1173
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TYLER & FLORENCE KELLER,
Respondents
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ORAL ARGUMENT
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On the 30th day of January, 2010 the following
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proceedings came on to be heard in the above-entitled
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and numbered cause before the Honorables Justice Evelyn
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Keyes, Justice Michael C. Massengale and Justice George
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C. Hanks, Justices presiding, held in Houston, Harris
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County, Texas:
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Proceedings reported by computerized stenotype
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machine; Reporter's Record produced by Computer-Assisted
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Transcription.
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MARY S. BRAUN, RPR, CSR 5313
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A P P E A R A N C E S
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FOR THE PETITIONERS:
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Mr. Matthew Kellam
*** and ***
Ms. Whitney Hutchison
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FOR THE RESPONDENTS:
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Ms. Kristin Rhodus
*** and ***
Ms. Renatha Francis
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MARY S. BRAUN, RPR, CSR 5313
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THE BAILIFF:
The case before the court is
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Michael Keller and New Amsterdam General Hospital versus
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Tyler and Florence Keller.
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respondent are each allocated 30 minutes to present
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their pleadings.
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side of the Petitioners Michelle Keller and
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New Amsterdam City General Hospital.
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Honors.
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represent the Petitioners and will be addressing the
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second issue before this court.
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co-counsel for the Respondents Tyler and Florence
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Keller, taking on the second issue.
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JUSTICE KEYES:
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MR. KELLAM:
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JUSTICE KEYES:
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The petitioner and the
JUSTICE KEYES:
Can we have the
announcements of the parties, please.
MR. KELLAM:
Good morning, Your Honor.
My
name is Matthew Kellam, and I will cover Issue 1 on the
MS. HUTCHINSON:
Good afternoon, Your
My name is Whitney Hutchinson.
MS. RHODUS:
I, too,
My name is Kristen Rhodus, and
I represent the Respondents Tyler and Florence Keller.
MS. FRANCIS:
My name is Renatha Francis,
Thank you.
Mr. Kellam.
Yes, Your Honor.
Thank you.
How much time are you
planning to reserve?
MR. KELLAM:
Two minutes for rebuttal, Your
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Honor.
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JUSTICE KEYES:
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MR. KELLAM:
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JUSTICE KEYES:
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MR. KELLAM:
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JUSTICE KEYES:
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Okay.
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MR. KELLAM:
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name is Matthew Kellam of Team 36, and along with
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co-counsel, Ms. Whitney Hutchinson, I represent the
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Petitioners in this matter, Michelle Keller and
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New Amsterdam City General Hospital.
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district court has no jurisdiction because of the
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Rooker-Feldman doctrine.
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that if this Court holds there is jurisdiction, then
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abstention should apply to this case.
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in order for a minimally conscious patient to exercise a
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liberty interest with respect to life-or-death
Two minutes for rebuttal.
Thank you.
So you will have 15 and
then you have two minutes for rebuttal, or is this -MR. KELLAM:
It will be 14 and 14 on each
issue and then two minutes for rebuttal.
JUSTICE KEYES:
Thank you very much.
Okay.
All right.
Got you.
So that will be 14, 14 and two.
Correct.
Fine.
Thank you very much.
You may begin.
May it please the Court.
My
Today, I will argue that the federal
Alternatively, I will argue
Co-counsel, Ms. Hutchinson, will argue that
MARY S. BRAUN, RPR, CSR 5313
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decisions, the patient must understand the decision
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being made.
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there is no jurisdiction in the federal court because of
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the Rooker-Feldman doctrine.
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jurisdiction over constitutional issues, so why isn't
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there jurisdiction this time?
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parents could have and should have filed their federal
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claims in the state court because of concurrent
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jurisdiction.
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adjudicate --
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MR. KELLAM:
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And under the Rooker-Feldman doctrine, the
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doctrine doesn't look solely to whether the state court
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adjudicated the federal claims, but whether the
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plaintiff in the federal action could have brought those
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claims.
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have filed their claims in the state court.
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they did not do so, they are barred from filing in the
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federal court by the Rooker-Feldman doctrine.
Turning to the first issues, Your Honors,
JUSTICE KEYES:
MR. KELLAM:
There is always
Your Honor, because the
The state courts can certainly
JUSTICE KEYES:
Concurrent means you've
both got it.
Yes, Your Honor, precisely.
And here, the parents could have and should
MARY S. BRAUN, RPR, CSR 5313
And because
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JUSTICE KEYES:
Well, they actually did
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file in the state court.
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Rooker-Feldman is that it's a -- that is a collateral
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estoppel type of argument.
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actually been a number of years since I've looked at
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Rooker-Feldman.
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state court.
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I'm understanding it correctly because what I think has
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happened, and tell me if I'm wrong, is that you -- there
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was a state court action, and the state court action, as
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it said in the -- in my materials, it said it asked for
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an injunction.
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declaratory judgment, which makes sense to me because I
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don't see how you can get an injunction without having
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an underlying suit, so -- and it also looks like you got
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the declaratory judgment, which would mean that case is
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over.
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Rooker-Feldman going to bar you from being able to go
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back and argue the same issues over in the federal
My understanding of
I may be wrong because it's
But they did bring their claims in the
And you can help me out here if you would
tell me what the actual posture of this case is and if
But you also apparently asked for a
Is that correct?
MR. KELLAM:
Precisely, Your Honor.
The
state court proceedings are over.
JUSTICE KEYES:
So now the question is:
MARY S. BRAUN, RPR, CSR 5313
Is
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court?
And you're saying yes.
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Respondents, Your Honor, because the Respondents are
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attempting to have the federal district court directly
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review the state Supreme Court decision.
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the parents filed in the federal district court only one
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day after the state Supreme Court decision.
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Congress specifically grants authorization for the
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district court to directly review a state Supreme Court
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decision, the filing in federal court is barred by
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Rooker-Feldman, and that does apply here.
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holds that there is jurisdiction, then abstention also
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applies here for two specific reasons.
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New Amsterdam courts have not yet interpreted the state
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statute in question.
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counsel, aren't there federal constitutional issues that
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are inextricably intertwined with the state issues that
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the New Amsterdam Supreme Court has to decide?
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federal claims that are intertwined with the state law.
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And this is essentially a state law issue that the
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parents have cloaked in federal clothing.
MR. KELLAM:
Yes, it would bar the
Pages 11 and 12 of the record indicate that
And unless
Alternatively, Your Honor, if this Court
First,
But if --
JUSTICE HANKS:
MR. KELLAM:
In this particular case,
Yes, Your Honor, there are
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JUSTICE KEYES:
Not really.
It -- whether
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or not somebody has a right to make their own
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end-of-life determinations has been declared by the
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United States Supreme Court to be a constitutional
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issue.
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right, and the state Constitution can override that.
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there is a federal question.
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maintain a liberty interest in making a determination
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with respect to life-or-death treatment.
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Cruzan held that competent individuals have that right
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but incompetent individuals do not.
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The issue here --
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JUSTICE KEYES:
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that competent individuals have that right.
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recall any right that Cruzan said incompetent ones have
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no right.
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if competent individuals have this right, then the
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question is:
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no longer competent?
Plus the question:
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no longer competent?
And those are issues somebody has
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got to decide, and it looks like it hasn't been decided
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here.
And actually, there is a federal constitutional
MR. KELLAM:
Precisely, Your Honor.
So
This
Court did hold in Cruzan that all individuals do
However,
No, it didn't.
It held
I don't
And that's critical because if -- because
Who does the right devolve on when they're
MARY S. BRAUN, RPR, CSR 5313
When are they
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Are you saying it has to be decided by the
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Cruzan really set the parameters for this area of law.
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Other than Cruzan's main holding, as Justice O'Connor
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pointed out in her concurrence, these issues of laws are
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best left to the laboratories of the states.
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developing that has only been around for the better part
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of ten years.
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MR. KELLAM:
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JUSTICE KEYES:
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concept of the state -- a legal concept that's only been
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around for ten years?
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consciousness has probably been around longer.
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medically speaking, doctors did not diagnose this state
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until --
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JUSTICE KEYES:
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MR. KELLAM:
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state court?
MR. KELLAM:
Yes, Your Honor, because
This is certainly a minimally conscious
state.
It's a state of consciousness that is still
So because of this authority -JUSTICE KEYES:
Wait a minute.
A state of
consciousness that's only been around for ten years?
Yes, Your Honor.
Don't you mean the legal
Because I think the state of
MR. KELLAM:
Correct, Your Honor.
But
They didn't recognize it?
Did not recognize it until the
late 1990s.
So because of that issue and because of the
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uncertainty in this law, abstention does become all the
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more appropriate.
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Rooker-Feldman.
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pretty hard to see how Rooker-Feldman is going to bar
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inquiry by anybody into this -- into this issue which is
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so critical to so many human beings when there is no
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state court proceeding pending.
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resolve this.
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proceeding, I don't believe, so what are you abstaining
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from doing?
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Railroad Commission v. Pullman, this court would be
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abstaining from interpreting and forecasting what
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New Amsterdam law would be because in this case --
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say, There's no proceeding, but we're going to abstain
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anyway?
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this court can stay -- the federal district court would
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stay the proceeding and New Amsterdam would be allowed
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to interpret its state statute.
And under --
JUSTICE KEYES:
But why?
I mean, why would
you abstain?
Now, let's assume that it's not barred by
And frankly, I've got to tell you, it's
So somebody has to
You're not abstaining from any ongoing
MR. KELLAM:
Well, Your Honor, under
JUSTICE KEYES:
MR. KELLAM:
So what do you do, just
Under Pullman, Your Honor,
And under Railroad
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Commission v. Pullman, this court will then determine if
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that state court interpretation mooted out the federal
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constitutional claims.
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state court question, then, under Pullman, do you send
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that back to the state court for resolution, asking them
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to resolve their own state court constitutional
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question, and then it comes back to the federal court?
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federal court would only continue the matter if the
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federal claims were not mooted out.
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this court recognized in Pullman.
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v. Bozanich, a 1970 case, when it held that if it was
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even conceivable that the federal claims would be mooted
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out by the state court adjudication, then Pullman would
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be appropriate.
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appropriate standard and not Burford or one of our other
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abstention doctrines?
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abstention would be just as appropriate as Pullman
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abstention.
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abstention is appropriate because the ability to
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regulate end-of-life decision-making is of significant
JUSTICE KEYES:
MR. KELLAM:
So would you send that
Correct, Your Honor.
And the
And that's what
And this court furthered Pullman in Reetz
JUSTICE MASSENGALE:
MR. KELLAM:
Why is Pullman the
Your Honor, the Burford
Both are applicable here.
MARY S. BRAUN, RPR, CSR 5313
And Burford
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state concern.
And furthermore, the failure to abstain
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here creates a severe disruption in New Amsterdam's
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ability to establish a coherent scheme in this area of
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law.
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Burford there are actually two prongs, and the prong
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that Michelle is moving under is prong two, and these
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two prongs were recognized by this court in a 1989 case,
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NOPSI.
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significance of the state law issue and how abstention
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would affect the state's ability to establish a coherent
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scheme in that area of law.
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conscious patients is of significant state concern
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because it's intimately wrapped up with the state's
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police powers.
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protect their citizens' health, safety, morals and
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welfare, and this has been recognized as an ideal reason
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to apply Burford abstention.
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the Fourth Circuit case in 1999, Johnson Entertainment
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Company versus Collins.
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JUSTICE MASSENGALE:
But Burford didn't
involve injunctive relief, did it?
MR. KELLAM:
No, Your Honor.
But under
And the second prong focuses exclusively on the
And certainly, protecting minimally
States, of course, have the ability to
And that was a holding of
And certainly, Your Honors, this court also
recognized in 1985 in Metropolitan Life Insurance
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Company versus Massachusetts that states have great
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leeway to draft laws that protect the limbs, the comfort
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and the safety of their citizens.
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issue to the state, this is an issue that will affect
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multiple residents of New Amsterdam.
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not every patient may be in a minimally conscious state.
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But this law and the interpretation of this statute will
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have addressed an impact on the state because citizens
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may have to serve as surrogate or proxy decision-makers
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under this law.
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has held that thousands of end-of-life decisions are
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made on a daily basis.
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significant area of state law.
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consider that other states are going to be looking at
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this case as well and wondering what kind of guidance
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might be provided by this court as -- I mean, the
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question of whether there is a liberty interest and to
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what extent it's protected under the Constitution is
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common to all the states.
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considers that question, then we're at risk, aren't we,
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of having inconsistent resolutions in all the different
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states?
But in addition to the magnitude of this
Now, admittedly,
Also, the American Hospitals Association
So certainly, this is a
JUSTICE MASSENGALE:
Well, shouldn't we
And if this court never
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MR. KELLAM:
No, Your Honors.
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this court was comfortable in Cruzan with the fact that
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the laboratories of democracy process would work out and
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would benefit the nation as a whole.
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would be relevant to each state's ability to determine
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its own procedures.
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in all the states, isn't it?
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the question that we have indicated we're interested in
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addressing in this case?
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court made clear in Cruzan that all patients do have the
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liberty interest in determining end-of-life treatment,
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but the court did leave it up to the states to determine
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their own burdens of proof, for example.
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understood that the issues identified by this court that
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would be taken up in this case included the question of
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whether a person has a liberty interest on the facts
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presented.
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resolving that question, provide guidance to other
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states, and wouldn't -- isn't that a reason why we
JUSTICE MASSENGALE:
In fact,
Well, in Cruzan that
But it's the same liberty interest
MR. KELLAM:
Of course, Your Honor.
JUSTICE MASSENGALE:
MR. KELLAM:
Okay.
And isn't that
No, Your Honor, because this
JUSTICE MASSENGALE:
Well, I thought I had
And isn't that something that we can, by
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should go ahead and hear the case?
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court could choose not to abstain and address the second
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issue.
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in this area of law.
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opportunity for us to provide guidance and dispel some
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confusion?
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only because it's still unclear what the best course of
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action would be.
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democracy process is ideal because states may handle
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this matter in many different ways.
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handle the matter differently than Texas.
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to establish their procedures if we gave them some
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guidance about the scope of the liberty interest and
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what we would be looking for in terms of an adequate
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procedure from the state?
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potentially be resolved, admittedly.
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alternative is for this court to abstain and to allow
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these thorny issues of law to be advanced by the states.
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And, therefore, the nation would benefit as a whole
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because the states would be able to determine what
MR. KELLAM:
Certainly, Your Honor, this
But the problem there still, there is confusion
And Justice Scalia noted that --
JUSTICE MASSENGALE:
MR. KELLAM:
So isn't this a great
Not necessarily, Your Honor,
And that's why the laboratories of
JUSTICE MASSENGALE:
MR. KELLAM:
New Amsterdam might
Wouldn't it help them
Your Honor, that could
However, the
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methods have worked and what haven't.
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minimally conscious state is especially unpredictable.
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Doctors are still attempting on a daily basis to
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determine the details of this state of consciousness.
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helpful if we, as Justice Massengale said, establish the
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parameters so that the states would be in a better
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position to develop whatever evidentiary standards that
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need to be developed to determine, you know, what is a
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minimally conscious state versus a permanent vegetative
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state?
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an ideal course of action.
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set the parameters for this area of law.
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concurrence, it would be inappropriate at this time to
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take an additional course of action because of the
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uncertainty.
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these questions are certainly not in the Constitution,
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and quite respectfully, he stated that they are beyond
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the justices of this honorable court.
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reasons, it would be dangerous for this court to take a
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stance in this area.
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for the states to resolve at this time because of the
And that's appropriate here because the
JUSTICE HANKS:
MR. KELLAM:
Well, wouldn't it be
Your Honor, yes, that could be
But in Cruzan, this court
And as Justice Scalia noted in his
Justice Scalia stated that the answers to
And for those
This is an issue that is perfect
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uncertainty.
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is that assuming that we find that there is jurisdiction
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in the federal courts, that the suit that you have
02:11
5
pending in the federal courts should be -- should be
02:11
6
abated and the issues referred to the state court to get
02:11
7
resolution of them, or you will send over a question for
02:12
8
them -- for their highest court to resolve their own,
02:12
9
what, Constitution, I guess.
02:12
10
02:12
11
I assume, and federal constitutional issues underlying
02:12
12
that statute?
02:12
13
02:12
14
02:12
15
02:12
16
02:12
17
MR. KELLAM:
02:12
18
I see my time has expired.
19
JUSTICE KEYES:
02:12
20
MR. KELLAM:
02:12
21
If this court elects to abstain under
02:12
22
Pullman, then yes, the action would be stayed, and then
02:12
23
it would depend on the adjudication at the state level.
02:12
24
However, if this court elects to abstain under Burford,
02:12
25
there would be a complete dismissal.
JUSTICE KEYES:
So your fallback position
There are some state constitutional issues,
MR. KELLAM:
Correct.
And to answer Your
Honor -JUSTICE KEYES:
Either the current one or
the pending one?
Yes, partly, Your Honor.
Please finish.
Thank you so much.
So there are
MARY S. BRAUN, RPR, CSR 5313
18
02:12
1
different options here.
2
JUSTICE KEYES:
3
MR. KELLAM:
Thank you.
Your Honor, it's for the
02:12
4
reasons stated there is no jurisdiction in the federal
02:12
5
court because of the Rooker-Feldman doctrine.
02:12
6
JUSTICE KEYES:
7
MR. KELLAM:
02:12
8
JUSTICE KEYES:
02:12
9
02:12
10
02:12
11
02:12
12
JUSTICE KEYES:
02:12
13
MS. HUTCHINSON:
02:13
14
02:13
15
02:13
16
represent the Petitioners Michelle Keller and the
02:13
17
New Amsterdam City General Hospital.
02:13
18
02:13
19
time before the court, abstention is appropriate in this
02:13
20
case.
02:13
21
02:13
22
unwarranted, then with respect to the second issue, we
02:13
23
respectfully ask this court to reverse the holding of
02:13
24
the 14th Circuit Court of Appeals as to their standard
02:13
25
of competency to make medical treatment decisions.
Thank you.
But -No.
I'm going to let the
next -MR. KELLAM:
Thank you, Your Honor.
I
apologize.
Ms. Hutchinson.
Thank you, Your Honor.
May it please the Court.
My name is Whitney Hutchinson, and I, too,
As my co-counsel has just addressed in his
However, if abstention is found to be
MARY S. BRAUN, RPR, CSR 5313
19
02:13
1
Such a holding is warranted in this case
02:13
2
02:13
3
02:13
4
the standard of competency by replacing a patient's
02:13
5
capacity to understand with the ability to communicate.
02:13
6
02:13
7
Aren't you asking us sitting here on the federal court,
02:13
8
the Supreme Court, to resolve a question of state
02:14
9
statute, how you interpret a state statute?
02:14
10
02:14
11
court be allowed -- the Supreme Court of the state of
02:14
12
New Amsterdam be allowed to determine what its own
02:14
13
statute means?
02:14
14
I believe that's pretty bedrock law.
02:14
15
MS. HUTCHINSON:
02:14
16
under the first issue, argue that abstention is
02:14
17
appropriate in this case, that New Amsterdam should be
02:14
18
allowed to determine and interpret its own law.
02:14
19
02:14
20
we're going to blast right past that and we're going to
02:14
21
do the interpretation, here is how we should interpret
22
it --
for the following three reasons.
First, the 14th Circuit incorrectly lowered
JUSTICE KEYES:
Well, now, wait a minute.
And shouldn't the -- shouldn't that state
JUSTICE KEYES:
23
MS. HUTCHINSON:
02:14
24
JUSTICE KEYES:
02:14
25
Well, that is why we,
So you're saying that if
Not --- for the people of
New Amsterdam?
MARY S. BRAUN, RPR, CSR 5313
20
02:14
1
MS. HUTCHINSON:
I apologize.
02:14
2
If this court is addressing the second
02:14
3
issue, the question is not the construction or
02:14
4
interpretation of the New Amsterdam state statute, but
02:14
5
rather whether or not the holding of the 14th Circuit,
02:14
6
which created a new standard of competency, whether that
02:14
7
standard is appropriate.
02:14
8
02:14
9
02:15
10
ability to communicate.
02:15
11
medical uncertainty that currently surrounds the states
02:15
12
of consciousness, the 14th Circuit's reliance upon a
02:15
13
medical diagnosis is an improper basis for the exercise
02:15
14
of constitutional liberty interest.
02:15
15
02:15
16
urge this court to reject the standard put forth by the
02:15
17
14th Circuit and instead adopt the correct standard of
02:15
18
competence, that a patient must be able to understand
02:15
19
both their prognosis but also the serious effects of
02:15
20
their decisions.
02:15
21
02:15
22
define the scope of the constitutional liberty interest
02:15
23
if you're not asking us to say -- to interpret a state
02:15
24
statute?
02:15
25
And we argue that it's not, first, because
it replaces a patient's capacity to understand with the
Additionally, given the extreme
Thus, under the second issue presented, we
JUSTICE KEYES:
MS. HUTCHINSON:
So are you asking us to
Here it's not defining the
MARY S. BRAUN, RPR, CSR 5313
21
02:15
1
scope but rather, as you noted correctly during my
02:15
2
co-counsel's argument, Your Honor, that Cruzan sets
02:15
3
forth that all individuals, whether competent or
02:15
4
incompetent, have a liberty interest.
02:15
5
in its --
02:15
6
02:16
7
colleague said that only competent individuals have a
02:16
8
liberty interest.
02:16
9
02:16
10
02:16
11
02:16
12
02:16
13
02:16
14
02:16
15
02:16
16
02:16
17
02:16
18
02:16
19
02:16
20
02:16
21
standard of competency to determine who has the ability
02:16
22
to exercise and who does not?
02:16
23
02:16
24
14th Circuit on pages 18 and 19 of the record is an
02:16
25
incorrectly low standard because it explicitly
JUSTICE KEYES:
MS. HUTCHINSON:
All Cruzan states
Well, I think your
I apologize.
I believe he stated that they only have
the -JUSTICE KEYES:
I think that's wrong, so
let's go with you.
MS. HUTCHINSON:
exercise it.
They have the ability to
I believe that's the -JUSTICE KEYES:
So it's exercise that
matters, who can exercise that liberty interest.
MS. HUTCHINSON:
Yes, Your Honor, who can
exercise.
So here, the question is:
What is the
And the standard put forth by the
MARY S. BRAUN, RPR, CSR 5313
22
02:16
1
disregards whether a patient can understand and entirely
02:16
2
replaces that with the ability to communicate.
02:16
3
an incorrect standard because it creates significant
02:16
4
negative consequences that are applicable, and seen when
02:16
5
applying this lower standard to the facts of the case
02:16
6
such as the Matter of O'Brien from the New York Court of
7
Appeals.
That is
02:16
8
The issue in the O'Brien case was the
02:16
9
02:17
10
stroke patient.
02:17
11
was confined to a hospital bed.
02:17
12
that he still had self-awareness and the ability to
02:17
13
communicate.
02:17
14
to yes-or-no questions and avert his gaze when asked
02:17
15
more difficult and complicated questions.
02:17
16
02:17
17
Father O'Brien was competent to decide to withdraw
02:17
18
nutrition and medical treatment because on five separate
02:17
19
occasions, he was expressing a preference that he wanted
02:17
20
to do so by attempting to withdraw his gastrotomy
02:17
21
feeding tube.
02:17
22
02:17
23
02:17
24
02:17
25
competency of an 83-year-old Catholic priest who was a
Father O'Brien, because of his stroke,
But the Court noted
He could nod or shake his head in response
And thus, the argument was that
Under the 14th Circuit's lower standard,
Father O'Brien's life would be erroneously deprived.
JUSTICE KEYES:
Now, I'm still trying to
figure out what your -- it's a standard of what?
MARY S. BRAUN, RPR, CSR 5313
And
23
02:17
1
you say a standard of competency.
02:17
2
02:17
3
unless I'm misunderstanding you -- which is a real
02:17
4
possibility, so you should maybe work on this, work on
02:17
5
making sure that we're on the same page here -- that
02:17
6
when -- what you actually are talking about is the scope
02:18
7
of the -- of the constitutional right to exercise -- to
02:18
8
determine your own medical fate.
02:18
9
02:18
10
the area of, okay, so the State of New Amsterdam has a
02:18
11
statute over here and it says all this stuff, but no
02:18
12
matter what, that stuff is going to be unconstitutional,
02:18
13
and we can short-circuit that because we need to go and
02:18
14
determine the bedrock of what would be a
02:18
15
constitutional -- the scope of the constitutional right.
02:18
16
02:18
17
to -- something is going to happen to it when a person
02:18
18
is incompetent.
02:18
19
they have -- still have the right, if they were
02:18
20
competent back here, to have appointed a proxy or -- to
02:18
21
stand in for them, or they -- or the state gets to take
02:19
22
over and set its own standards.
02:19
23
02:19
24
doesn't have the right to take over and decide when
02:19
25
someone -- where this -- where this right runs out, then
And so I think that you actually are,
And I am wondering if you're getting into
And that constitutional right is going
Either when that person is incompetent,
Now, if you want to decide that the state
MARY S. BRAUN, RPR, CSR 5313
24
02:19
1
I could maybe understand that.
02:19
2
02:19
3
02:19
4
MS. HUTCHINSON:
02:19
5
JUSTICE KEYES:
02:19
6
MS. HUTCHINSON:
02:19
7
that the laboratories of the states are the best avenue
02:19
8
to address the standard of competency.
02:19
9
02:19
10
stated, would blow past that issue and address the
02:19
11
standard of competence, this would not undercut the
02:19
12
statutes set forth by states like New Amsterdam.
02:19
13
Subsection 1 of the proxy statute 294.60 from
02:19
14
New Amsterdam only applies and is relevant if an
02:19
15
individual is found to be incompetent.
02:19
16
02:19
17
applicability of New Amsterdam's directive.
02:19
18
the standard under the proxy statute.
02:19
19
step to determine whether an individual is incompetent.
02:19
20
02:20
21
that is necessary is that an individual is self-aware
02:20
22
and that they can express a preference, but they
02:20
23
disregard whether or not the patient has the capacity to
02:20
24
understand.
02:20
25
Do you see where my confusion comes in that
I'm not sure about what you're -Yes, Your Honor.
-- arguing?
It is still our position
However, again, if this court, as you
Thus, the issue here is not the
It's not
It's this first
And the 14th Circuit has put forth that all
And that's an import -- the reason that
MARY S. BRAUN, RPR, CSR 5313
25
02:20
1
that's incorrect is because the goal of end-of-life
02:20
2
treatment is to best determine and effectuate what a
02:20
3
patient's wishes would be.
02:20
4
02:20
5
how does the United States Supreme Court have the
02:20
6
fact-finding ability to determine what kind of -- what's
02:20
7
going to count as competent or not?
02:20
8
02:20
9
02:20
10
you have to go back and have this standard established
02:20
11
somewhere else before you get up to the United States
02:20
12
Supreme Court to be calling for its own fact finders,
02:20
13
which it doesn't have any ability to go out and get.
02:20
14
02:20
15
02:20
16
02:20
17
not be asking for this court to be doing fact-finding,
02:21
18
for example, with respect to Stephen Keller's
02:21
19
competency.
02:21
20
it's addressing the second issue and then demand for
02:21
21
further fact-finding to determine if Stephen is
02:21
22
competent or not under the correct standard.
02:21
23
And here, the other reason --
02:21
24
JUSTICE KEYES:
02:21
25
JUSTICE KEYES:
Well, that sounds good, but
It seems to me that's what state statutes
are built on is factual determinations and that, first,
MS. HUTCHINSON:
Exactly, Your Honor, which
is why abstention is warranted in this case.
But in addressing the issue -- this would
This court would merely set a standard if
Constitutional as opposed
to statutory, I take it?
MARY S. BRAUN, RPR, CSR 5313
26
02:21
1
MS. HUTCHINSON:
Yes, Your Honor.
02:21
2
JUSTICE KEYES:
02:21
3
MS. HUTCHINSON:
02:21
4
But here, the other reason the 14th Circuit
02:21
5
standard is incorrect is because it heavily relies upon
02:21
6
a medical diagnosis, the diagnosis of being in a
02:21
7
minimally conscious state.
02:21
8
02:21
9
my co-counsel correctly noted, doctors first recognized
02:21
10
the minimally conscious state in the late 1990s, but it
02:21
11
was only fully recognized within the American Medical
02:21
12
Association's Journal of Neurology in 2002, when
02:21
13
Dr. Giacino in the Aspen convention published its
02:21
14
studies with respect to the minimally conscious state.
02:21
15
02:21
16
doctors and neurologists readily admit that it is very
02:22
17
difficult, if not impossible, to accurately and
02:22
18
consistently differentiate between the persistent
02:22
19
vegetative state and the minimally conscious state.
02:22
20
02:22
21
published a study that showed in multiple metropolitan
02:22
22
hospitals as well as nursing homes in cities such as
02:22
23
London, Milwaukee and New Orleans that patients were
02:22
24
being misdiagnosed on an average of 20 to 43 percent of
02:22
25
the time, showing that --
A constitutional standard?
Yes, Your Honor.
This is incorrect because at this time, as
Subsequent to that publication, however,
In fact, in 2009 Dr. Caroline Schnakers
MARY S. BRAUN, RPR, CSR 5313
27
02:22
1
JUSTICE KEYES:
Well, but now we're really
02:22
2
02:22
3
02:22
4
to Cruzan.
02:22
5
me straight if this is wrong -- that we said we just set
02:22
6
out general parameters of constitutionality and then
02:22
7
said your statute back there in Missouri, or wherever it
02:22
8
was, is fine.
02:22
9
under your statute.
02:22
10
02:22
11
your statute constitutional?
02:22
12
issue.
02:23
13
02:23
14
it.
02:23
15
persistent vegetative state, and there the State of
02:23
16
Missouri had set forth a clear and convincing evidence
02:23
17
standard to determine whether or not life-sustaining
02:23
18
treatment could be withdrawn.
02:23
19
it first stated that all individuals do have a liberty
02:23
20
interest with respect to the integrity of their own
02:23
21
person, but that only competent individuals can exercise
02:23
22
that liberty interest.
02:23
23
maintain that interest, but an individual such as a
02:23
24
surrogate or court-appointed proxy would have to
02:23
25
exercise that interest for you.
getting into facts.
Now, what -- I'm just trying to think back
And in Cruzan, my recollection is -- and set
You go and make these determinations
And I think the issue in that case was, is
MS. HUTCHINSON:
I believe that was the
It was -- it was part of
Nancy Cruzan in the 1990 case, she was in a
In this court's holding,
If you're incompetent, you still
And there they found
MARY S. BRAUN, RPR, CSR 5313
28
02:23
1
that the clear and convincing evidence standard was
02:23
2
appropriate, constitutional, but that the courts could
02:23
3
set lower standards -- I apologize -- the states could
02:23
4
set lower standards if they saw fit.
02:23
5
to my co-counsel's argument that the laboratories of
02:23
6
democracy should be addressing this issue within the
02:23
7
individual states.
02:23
8
02:24
9
02:24
10
02:24
11
02:24
12
the concurrence of the Cruzan decision noted that
02:24
13
end-of-life decisions are very personal, they're very
02:24
14
intimate, and so in this area of law we must do our best
02:24
15
to determine what an individual's wishes with respect to
02:24
16
care would be.
02:24
17
02:24
18
entirely disregards whether a patient understands his
02:24
19
prognosis or the serious effects of his decisions, such
02:24
20
as Father O'Brien, who the court found did not
02:24
21
understand that withdrawing his gastrotomy feeding tube
02:24
22
would result in his life -- the end of his life, it
02:24
23
creates a risk of erroneously or incorrectly
02:24
24
effectuating what these patients' wishes would be.
02:24
25
Again, going back
Another reason for why the 14th Circuit's
standard is incorrect, it results in risks that may
improperly effectuate what an individual's wishes are.
Justice Scalia, in the concurrence -- in
Because the 14th Circuit's standard
Understanding is a test that is implied by
MARY S. BRAUN, RPR, CSR 5313
29
02:24
1
this court in Cruzan, stating that incompetent
02:24
2
individuals don't have the ability to exercise their
02:25
3
liberty interests because they can't make informed
02:25
4
choices.
02:25
5
02:25
6
appropriate standard since 1977 in the American Journal
02:25
7
of Psychiatry, which lists understanding as an
02:25
8
appropriate benchmark for competency.
02:25
9
02:25
10
utilize understanding:
02:25
11
Michigan Supreme Court in In Re: Martin, which addressed
02:25
12
whether or not Michael Martin understood his prognosis;
02:25
13
In Re: AC from the District of Columbia; In Re: Ferrell
02:25
14
from New Jersey; Florida state statutes.
02:25
15
02:25
16
constitutionality of this current statute that they have
02:25
17
in New Amsterdam?
02:25
18
MS. HUTCHINSON:
02:25
19
JUSTICE KEYES:
02:25
20
MS. HUTCHINSON:
02:25
21
JUSTICE KEYES:
02:25
22
MS. HUTCHINSON:
02:25
23
unclear with the proxy code which my co-counsel
02:25
24
addressed.
02:25
25
opportunity to address subsection 1, whether or not that
Medicine recognizes understanding as an
But additionally, states across our nation
New York in the O'Brien case;
JUSTICE KEYES:
Under --
So are you testing the
Of the proxy code?
Yes, absolutely.
No, Your Honor.
No?
There are issues that are
Specifically, New Amsterdam has not had the
MARY S. BRAUN, RPR, CSR 5313
30
02:25
1
applies to a minimally conscious state patient;
02:26
2
subsections 2 and 3, whether they apply to only a proxy
02:26
3
or also a surrogate.
02:26
4
02:26
5
constitutionality, but rather if this court decides to
02:26
6
set a standard of competency, we urge it to reject the
02:26
7
14th Circuit standard which results in far too great of
02:26
8
a risk of incorrectly effectuating what a patient's
02:26
9
wishes would be.
02:26
10
02:26
11
say, Forget about what the -- what the 14th Court said,
02:26
12
and that wasn't really something they should be opining
02:26
13
on, and take and have the federal courts abstain
02:26
14
altogether from this until this issue can go back, and
02:26
15
then send it back over to the state court and have them
02:26
16
work out what this statute really means, and then we can
02:26
17
see whether or not the -- what they come up with is a --
02:26
18
comports with constitutional law?
We're not questioning the
JUSTICE KEYES:
So are you asking us to
19
MS. HUTCHINSON:
Yes, Your Honor.
02:26
20
JUSTICE KEYES:
02:26
21
MS. HUTCHINSON:
02:26
22
would be invoking the Pullman doctrine of abstention
02:27
23
that this court created in 1941.
02:27
24
02:27
25
Is that your argument?
Yes, Your Honor.
That
But if this court does address the second
issue, we urge -- I apologize.
I see that my time has
MARY S. BRAUN, RPR, CSR 5313
31
02:27
1
expired.
May I briefly conclude?
02:27
2
JUSTICE KEYES:
02:27
3
MS. HUTCHINSON:
02:27
4
court to adopt a correct standard of competency that
02:27
5
includes the capacity to understand.
02:27
6
Thank you very much.
02:27
7
JUSTICE KEYES:
02:27
8
Ms. Rhodus.
02:27
9
MS. RHODUS:
02:27
10
name is Kristin Rhodus, and along with co-counsel
02:27
11
Renatha Francis, we represent the Respondents Tyler and
02:27
12
Florence Keller, Stephen's parents.
02:27
13
02:27
14
First, whether the federal abstention doctrine is
02:27
15
applicable when the -- when the facts of the case do not
02:27
16
fit the narrowly defined abstention doctrines; and
02:27
17
second, whether a person in a minimally conscious state
02:27
18
can exercise their due process rights to terminate their
02:28
19
own life-sustaining medical treatment.
02:28
20
addressing the first issue and my co-counsel will be
02:28
21
addressing the second.
02:28
22
02:28
23
discretion standard to affirm the decision below and
02:28
24
hold that the federal abstention doctrine is
02:28
25
inapplicable.
Just finish the sentence.
Certainly.
We urge this
Thank you.
May it please the Court.
My
There are two issues before the Court:
I will be
We ask this Court under an abuse of
MARY S. BRAUN, RPR, CSR 5313
32
02:28
1
The petitioners claim in the case that the
02:28
2
Burford doctrine, the Rooker-Feldman doctrine and the
02:28
3
Pullman doctrine all apply.
02:28
4
recognized that they have an unflagging obligation to
02:28
5
hear cases within its jurisdiction.
02:28
6
02:28
7
within the jurisdiction of the federal -- every
02:28
8
constitutional question is within the jurisdiction of
02:28
9
the Supreme Court.
02:28
10
MS. RHODUS:
02:28
11
JUSTICE KEYES:
02:28
12
Court be wading in at this stage when there are all
02:28
13
these unresolved issues?
02:28
14
02:28
15
isn't unresolved issues within the state of
02:28
16
New Amsterdam, and that would go to the Pullman
02:29
17
doctrine.
02:29
18
if there is unsettled issues that revolve around a
02:29
19
constitutional claim and the state can resolve those
02:29
20
issues, then abstention is appropriate.
02:29
21
claims need to be primary to the concern of the
02:29
22
constitutional question.
02:29
23
02:29
24
can be anything else myself because when you're asking
02:29
25
questions of what is the scope of a -- of the statute
JUSTICE KEYES:
MS. RHODUS:
However, this Court has
However --
We hear every case that's
Yes, Your Honor.
So why should the Supreme
Because, Your Honor, there
Whereas the Pullman doctrine recognizes that
JUSTICE KEYES:
However, those
Well, I don't see how they
MARY S. BRAUN, RPR, CSR 5313
33
02:29
1
and what are the parts of this statute, what do they
02:29
2
really mean, like if you get into -- there's been no
02:29
3
interpretation of this proxy statute.
02:29
4
developments in -- or at least parts of it, and there
02:29
5
have been -- there has been new developments in medicine
02:29
6
and new situations brought out.
02:29
7
really heavily ambiguous language.
02:29
8
darn scary.
02:29
9
ought to get in.
02:29
10
02:30
11
decision to withhold or withdraw life-prolonging
02:30
12
procedures -- first, it tells you that only sometimes
02:30
13
does a proxy get to wade in at all.
02:30
14
it over if the proxy doesn't meet its burden.
02:30
15
then -- and then if it doesn't, if there is no
02:30
16
indication of what the patient would have chosen on
02:30
17
which the proxy, therefore, can face -- can show that
02:30
18
it's entitled to stand in, the hospital's medical ethics
02:30
19
committee should consult with the patient's guardian and
02:30
20
attending physicians to determine whether the decision
02:30
21
to withhold or withdraw life-prolonging procedures is in
02:30
22
the patient's best interest.
02:30
23
02:30
24
State can wade in, it looks like, under this statute and
02:30
25
make these determinations for people.
And there are new
Plus, there's some
Some of it is pretty
Now, maybe that's one reason you think you
But in subsection 3 it says that a proxy's
The State can take
And
That's a pretty scary doctrine, and the
MARY S. BRAUN, RPR, CSR 5313
Well, we'll just
34
02:30
1
leap in there and say whether or not there can be
02:30
2
life-prolonging procedures.
02:30
3
02:30
4
itself to have that type of interpretation, shouldn't
02:30
5
you give the State the chance first to decide if that's
02:30
6
what they really meant or if it really means something
02:31
7
else?
02:31
8
02:31
9
02:31
10
required by the courts to determine if a person is
02:31
11
competent or incompetent.
02:31
12
whether the person has an advanced directive and whether
02:31
13
that advanced directive applies.
02:31
14
is no advanced directive or it does not apply, then the
02:31
15
proxy statute comes into play.
02:31
16
02:31
17
person is incompetent or competent is what revolves
02:31
18
around this constitutional question of due process.
02:31
19
the proxy code does not even come into play until
02:31
20
further down the line.
02:31
21
02:31
22
what this Court is to determine, and it's a
02:31
23
constitutional claim that is primarily concerned with
02:31
24
the due process challenge brought before this Court as a
02:31
25
federal constitutional question.
When you've got a statute that allows
They also have another statute out there pending.
MS. RHODUS:
Well, no, Your Honor.
Going
to the first part of your question, it first needs to be
And second, it would go to
Then third, if there
However, that first stat of whether a
So
So a determination of competency is only
MARY S. BRAUN, RPR, CSR 5313
35
02:31
1
JUSTICE MASSENGALE:
Why is it a
02:31
2
constitutional claim?
02:31
3
New Amsterdam state law to determine the competency of
02:31
4
Stephen?
02:31
5
02:32
6
Keller is typically left in the realm of the states'
02:32
7
courts.
02:32
8
whether due process right is afforded to patients as an
02:32
9
MCS state is something that this Court was asked to
02:32
10
02:32
11
02:32
12
something the state courts are perfectly capable of
02:32
13
deciding or at least taking their own stab at deciding,
02:32
14
isn't it?
02:32
15
02:32
16
the New Amsterdam Supreme Court made their decision that
02:32
17
MCS patients and PVS patients were the same for an
02:32
18
advanced directive to apply, they never determined
02:32
19
whether there was a due process challenge.
20
there was --
Why isn't it a question under
MS. RHODUS:
The competency of Stephen
However, a federal constitutional claim of
decide and revolves around the primary -JUSTICE MASSENGALE:
MS. RHODUS:
Well, that's also
Yes, Your Honor.
JUSTICE MASSENGALE:
And whereas
And because
02:32
21
Well, was that issue
02:32
22
02:32
23
02:32
24
because the due process challenge did not occur or the
02:32
25
due process issue did not occur until after the
ever raised in state courts in the prior proceedings?
MS. RHODUS:
It was not, Your Honor,
MARY S. BRAUN, RPR, CSR 5313
36
02:32
1
New Amsterdam Supreme Court made their determination
02:32
2
that PVS patients and MCS patients were sufficiently the
02:32
3
same.
02:32
4
02:32
5
possible that if these questions were actually presented
02:32
6
to the New Amsterdam courts that they might construe
02:33
7
their statutes in a way that would -- that would fully
02:33
8
accommodate whatever constitutional concern we might
02:33
9
have?
02:33
10
02:33
11
02:33
12
02:33
13
02:33
14
02:33
15
courts have recognized, when there is a balancing act
02:33
16
between the federal courts and the state courts, the
02:33
17
balancing acts must look at whose interest is more
02:33
18
primarily important.
02:33
19
Supreme Court has made their determination according to
02:33
20
the advanced directive, PVS patients and MCS patients
02:33
21
are sufficiently the same, they did not make a due
02:33
22
process challenge determination.
02:33
23
is primarily a federal constitutional claim where there
02:33
24
is no unsettled state law issues that need to be
02:33
25
determined to decide the due process --
And this goes to the Rooker-Feldman doctrine.
JUSTICE MASSENGALE:
MS. RHODUS:
Well, isn't it
Yes, Your Honor, it could have
been.
JUSTICE MASSENGALE:
Why shouldn't we give
them that opportunity before we jump in?
MS. RHODUS:
Because, Your Honor, as the
And although the New Amsterdam
And that determination
MARY S. BRAUN, RPR, CSR 5313
37
02:33
1
JUSTICE KEYES:
02:33
2
there no unsettled issue?
02:33
3
to me one more time.
02:33
4
02:33
5
is any issue with -- that this Court finds in the proxy
02:33
6
statute, it's not a determination that needs to be made
02:34
7
to decide whether MCS patients retain their due process
02:34
8
rights.
02:34
9
deciding a person's competency and due process rights,
02:34
10
it does not need to be decided by this Court, and the
02:34
11
interpretation or unsettled issues does not need to be
02:34
12
evaluated by the federal courts.
02:34
13
02:34
14
evaluation of whether a mental conscious state is more
02:34
15
like a persistent vegetative state?
02:34
16
something that needs to be resolved at the state level
02:34
17
before we can step in and decide the constitutional
02:34
18
issues?
02:34
19
02:34
20
MCS patient and PVS patients, where they occur
02:34
21
throughout the country, have the ability -- or excuse
02:34
22
me -- this Court has the ability to use the scientific
02:34
23
evidence brought before them to make that determination,
02:34
24
and it can be used by those federal courts to decide
02:34
25
whether patients throughout the country in an MCS state
MS. RHODUS:
There's all kinds.
Why is
Would you please explain that
Because, Your Honor, if there
In the step process, it's so far removed from
JUSTICE HANKS:
MS. RHODUS:
Doesn't there need to be an
Isn't that
No, Your Honor.
MARY S. BRAUN, RPR, CSR 5313
Whereas the
38
02:34
1
retain their due process rights.
02:34
2
02:34
3
Supreme Court, we're just going to go out and order up
02:35
4
our own scientific studies.
02:35
5
has been an issue in the federal courts.
02:35
6
sort of not only get rid of the state law, but we'll
02:35
7
also get rid of the lower federal courts.
02:35
8
it ourselves on the basis of our own wisdom and
02:35
9
determination in scientific matters.
02:35
10
afraid your argument leads, and that's a very scary
02:35
11
prospect.
02:35
12
MS. RHODUS:
02:35
13
JUSTICE KEYES:
02:35
14
02:35
15
02:35
16
this Court has recognized in Cruzan, setting the
02:35
17
boundary lines is appropriate for this Court to do, and
02:35
18
then it allows the state courts to make their statutes
02:35
19
interpret in the way that's possible as long as they do
02:35
20
not violate a person's due process rights.
02:35
21
this issue is primary the concern of the federal courts.
02:35
22
02:35
23
02:35
24
02:35
25
JUSTICE KEYES:
So we up here at the
And I believe this actually
And we'll just
And we can do
That's where I'm
No, Your Honor.
Even though it's real nice
to have the power.
MS. RHODUS:
As in -- the Court has -- as
JUSTICE KEYES:
And that in
Well, what's the violation
of due process?
MS. RHODUS:
The violation of due process
in this claim is that if MCS patients are found to be
MARY S. BRAUN, RPR, CSR 5313
39
02:35
1
incompetent as a whole, then no patients that are MCS
02:36
2
can ever rebut that presumption and say that they are
02:36
3
competent and determine that they want to have their
02:36
4
life-sustaining medical treatment continue.
02:36
5
02:36
6
02:36
7
02:36
8
be because if you said -- if this Court -- or if this
02:36
9
Court was to refer back to the New Amsterdam Supreme
02:36
10
Court's decision, all patients -- MCS patients would not
02:36
11
be able to rebut the presumption that they are
02:36
12
incompetent.
02:36
13
02:36
14
up -- if you go this route, you're going to end up
02:36
15
overlooking and just not even allowing anybody the
02:36
16
possibility to determine what these statutes mean, that
02:36
17
it made just a lot of assumptions in the statutes and
02:36
18
there's a lot of unclear language.
02:36
19
making a unilateral determination, asking us to make it
02:36
20
from way up here as to everything as to -- that will
02:36
21
unsettle an awful lot of statutes, including this one
02:37
22
which has these proxy limits in there.
02:37
23
02:37
24
make this argument that the state -- on the basis of
02:37
25
what you've told us, that the state shouldn't be allowed
JUSTICE HANKS:
So basically, if somebody
wants to change their mind, there's no way to do it?
MS. RHODUS:
No, Your Honor, there wouldn't
And further -JUSTICE KEYES:
See, you're going to end
And you will be
It just seems to me that it's very hard to
MARY S. BRAUN, RPR, CSR 5313
40
02:37
1
to go back and look at some of these tangled and knotty
02:37
2
issues and make the factual determinations and so forth.
02:37
3
And we can -- we have the power to do that.
02:37
4
can abstain.
02:37
5
can abstain.
02:37
6
02:37
7
appropriate in this case because the federal courts
02:37
8
making a determination that MCS patients can
02:37
9
demonstrate, if they are competent, to terminate their
02:37
10
own life-sustaining medical treatment only means that if
02:37
11
the federal -- or excuse me -- if the state statute
02:37
12
interrupts that determination, then their -- then that
02:37
13
statute may be unconstitutional.
02:37
14
02:37
15
I mean, we
We still have proceeding over here and we
MS. RHODUS:
Well, abstention is not
JUSTICE KEYES:
So you're asking us to
determine its constitutionality?
16
MS. RHODUS:
I'm sorry, Your Honor?
17
JUSTICE KEYES:
I'm sorry.
You are asking
18
us to determine its constitutionality, as I understand
19
it.
02:37
20
I defer to my colleague.
I'm sorry.
02:38
21
JUSTICE MASSENGALE:
02:38
22
Counsel, is -- I mean, you don't have a -- you're not
02:38
23
presenting us a case where there is some factual dispute
02:38
24
about the competency of the patient, are you?
02:38
25
hasn't that been resolved by the state Supreme Court?
My only question,
MARY S. BRAUN, RPR, CSR 5313
I mean,
41
02:38
1
MS. RHODUS:
No, Your Honor.
02:38
2
the state Supreme Court they've only recognized that MCS
02:38
3
patients and PVS patients were sufficiently the same.
02:38
4
And as recognized on the record, page 23, they only
02:38
5
assumed at that point that Stephen was incompetent
02:38
6
because they made this blanket determination that MCS
02:38
7
patients were incompetent.
02:38
8
02:38
9
02:38
10
02:38
11
02:38
12
because this is a separate constitutional claim
02:38
13
precisely going to the Rooker-Feldman doctrine.
02:38
14
if this Court -- if the New Amsterdam Supreme Court was
02:38
15
making a determination that was a due process challenge,
02:38
16
then they would have been deciding that MCS patients and
02:38
17
PVS patients all do not have this due process challenge.
02:39
18
Instead, they made the determination that only in this
02:39
19
advanced directive did the MCS patients and PVS
02:39
20
patients, or in Stephen's case, did not retain a due
02:39
21
process right because of the advanced directive that
02:39
22
applied.
02:39
23
this advanced directive that Stephen or any other MCS
02:39
24
patients within New Amsterdam cannot overcome.
02:39
25
JUSTICE MASSENGALE:
Whereas in
So you're asking us to
reverse a factual finding from the New Amsterdam Supreme
Court, in essence?
MS. RHODUS:
Not at all, Your Honor,
Whereas
They created an irrebuttable presumption with
And finally, turning to the Burford
MARY S. BRAUN, RPR, CSR 5313
42
02:39
1
doctrine, this Court has recognized that abstention was
02:39
2
appropriate in only two circumstances:
02:39
3
state law issue revolved around a complex issue of state
02:39
4
law where it also had a substantial concern or public
02:39
5
substantial concern; and second, if the federal judicial
02:39
6
review would disrupt the state's coherent policies,
02:39
7
those policies need to bear on an important -- public
02:39
8
importance.
02:39
9
02:39
10
02:39
11
02:39
12
recognized to determine if there is a coherent policy
02:40
13
disruption, they would look at the forum at which the
02:40
14
issue was being resolved.
02:40
15
02:40
16
probate court, is not special and unique, as recognized
02:40
17
in Property and Casualty Insurance versus the Insurance
02:40
18
of Omaha, where it needed to be a special and unique
02:40
19
forum to hear the issue, whereas under Marshall v.
02:40
20
Marshall, the Court recognized the probate court is not
02:40
21
special and unique where the federal courts don't need
02:40
22
to hear the issue.
02:40
23
issue in that case, even though it came from the probate
02:40
24
court.
02:40
25
JUSTICE HANKS:
First, if the
How would this not disrupt
the state's coherent policy in this area?
MS. RHODUS:
Your Honor, the courts have
And this forum within New Amsterdam, the
It was appropriate to hear that
And the probate courts, whereas they all
MARY S. BRAUN, RPR, CSR 5313
43
02:40
1
have -- every state has some type of probate court, this
02:40
2
was not -- would not be special and unique to
02:40
3
New Amsterdam, nor does it create a coherent policy
02:40
4
because there are still many probate courts throughout
02:40
5
the state, and those coherent policies would be -- only
02:40
6
rise to the level if it actually fit under what Burford
02:40
7
recognized.
02:40
8
02:40
9
02:40
10
commission, that creates a coherent policy, not what the
02:41
11
New Amsterdam has set up in the probate court.
02:41
12
02:41
13
abstention, it's not appropriate for this Court to
02:41
14
abstain under that because it isn't a complex local
02:41
15
issue.
02:41
16
have recognized under Burford the oil regulation within
02:41
17
Texas was appropriate for a complex local issue because
02:41
18
they were dealing with the complex geographical
02:41
19
locations of Texas and the economic concerns that came
02:41
20
from the oil regulations.
02:41
21
Texas and it was going into such intricacies that Texas
02:41
22
needed to have the determination in that case.
02:41
23
02:41
24
a statute as to how you determine when people are
02:41
25
competent to make their own end-of-life decisions
Where they had a Travis County court -- one
Travis County court that heard all the appeals from the
And going to the first type of Burford
And under this complex local issue, the Courts
And it was so important to
JUSTICE KEYES:
But it doesn't need to have
MARY S. BRAUN, RPR, CSR 5313
44
02:41
1
because that's not really complex and it doesn't really
02:41
2
happen in a lot of geographic locations, it's not a
02:41
3
recurring problem, and there are no real ramifications
02:41
4
because it's not economic?
02:41
5
02:41
6
Johnson v. Rodriguez, the Court recognized that adoption
02:42
7
statutes were not appropriate for abstention because
02:42
8
they occurred in every state.
02:42
9
had the ability to look at other jurisdictions and make
02:42
10
determinations, whereas the proxy statute in this case
02:42
11
is occurring in every single state, so the federal
02:42
12
courts have the ability to look at all these statutes
02:42
13
and make a determination.
02:42
14
02:42
15
with the one that isn't even before us.
02:42
16
going to go back behind that and make a determination
02:42
17
for everybody as to what ought to be in any statutes
02:42
18
that they ever happen to come up with?
02:42
19
to see your --
02:42
20
02:42
21
02:42
22
JUSTICE KEYES:
02:42
23
MS. RHODUS:
02:42
24
the actual constitutionality of the statute does not
02:42
25
need to be in determination by this Court or any federal
MS. RHODUS:
No, Your Honor.
JUSTICE KEYES:
MS. RHODUS:
expired.
Whereas under
And so the federal courts
So we don't need to stick
We're just
It's just hard
I recognize my time has
May I respond to your question?
Please.
Your Honor, the question of
MARY S. BRAUN, RPR, CSR 5313
45
02:42
1
court when they're just simply determining whether a
02:42
2
person is competent to determine their -- or to
02:42
3
terminate their life-sustaining medical treatment.
02:42
4
would be the first step in the analysis.
02:42
5
constitutionality of a statute would be far removed from
02:43
6
that first step.
02:43
7
02:43
8
02:43
9
02:43
10
name is Renatha Francis, co-counsel for Tyler and
02:43
11
Florence Keller, Stephen Keller's parents, the
02:43
12
respondents in this case.
02:43
13
02:43
14
self-exercise of a due process liberty interest to
02:43
15
consent or reject life-sustaining medical treatment may
02:43
16
be denied to a patient merely because he is minimally
02:43
17
conscious.
02:43
18
standard of review is de novo.
02:43
19
02:43
20
14th Circuit and submit two critical points from the
02:43
21
record to support this request:
02:43
22
responsive and aware of environmental stimulation as
02:43
23
indicated on page 6, paragraph 2 of the record; and
02:44
24
second --
02:44
25
That
The
And, therefore, we ask this Court to
affirm.
Thank you.
MS. FRANCIS:
May it please the Court.
My
The second question posed is whether the
This is a question of law, and so the
Respondents ask this Court to affirm the
JUSTICE MASSENGALE:
First, Stephen is
Well, that's one
MARY S. BRAUN, RPR, CSR 5313
46
02:44
1
interpretation of the record.
02:44
2
02:44
3
record explicitly states that Stephen Keller is aware of
02:44
4
environmental stimulation, and he makes known this
02:44
5
awareness by responding to the yes/no questions that are
02:44
6
posed to him by answering yes or no to simple commands
02:44
7
and by smiling at -- perhaps in recognition at his wife
02:44
8
and child when they come in to visit him.
02:44
9
JUSTICE HANKS:
02:44
10
question of whether or not he understood what he was
02:44
11
doing.
02:44
12
02:44
13
where the Petitioners would have this Court conflate two
02:44
14
medical -- distinct medical diagnoses, PVS and MCS.
02:44
15
fact is what the science knows about MCS patients are
02:44
16
that they are conscious individuals, aware not only of
02:44
17
themselves but also of their environmental surroundings,
02:44
18
and also respond purposely with purposeful behaviors,
02:44
19
unlike PVS patients who just act reflexively.
02:45
20
02:45
21
generalization about the medical conditions.
02:45
22
facts of this record, we don't -- we don't have any
02:45
23
evidence that this patient is actually comprehending and
02:45
24
responding to questions, do we?
02:45
25
MS. FRANCIS:
Right?
Not at all, Your Honor.
The
But I thought there was a
I mean, he's responding, but does he understand?
MS. FRANCIS:
Your Honor -- and this is
JUSTICE MASSENGALE:
MS. FRANCIS:
The
Well, that's a
But on the
We have evidence from the
MARY S. BRAUN, RPR, CSR 5313
47
02:45
1
record, Your Honor, that shows that there may be some --
02:45
2
Stephen Keller may be able to demonstrate, as the
02:45
3
14th Circuit correctly pointed out, that he can
02:45
4
communicate and express a preference regarding whether
02:45
5
or not he wants to terminate his treatment.
02:45
6
02:45
7
at least give Stephen Keller an opportunity to
02:45
8
demonstrate under the 14th Circuit's approach that he
02:45
9
can satisfy this modified competency determination and
02:45
10
02:45
11
02:45
12
with the evidentiary standard that the State of
02:45
13
New Amsterdam already has in place?
02:45
14
02:45
15
standard, Your Honor, is a trustworthy evidence of what
02:45
16
the patient would choose.
02:45
17
would default to what is in the best interest of the
02:46
18
patient.
02:46
19
02:46
20
with:
02:46
21
evidence is the appropriate standard, that there is not
02:46
22
trustworthy evidence to support the conclusion of the
02:46
23
state Supreme Court.
02:46
24
MS. FRANCIS:
02:46
25
JUSTICE MASSENGALE:
And the Respondents would ask this Court to
make this very final decision for himself.
JUSTICE MASSENGALE:
MS. FRANCIS:
Well, what's wrong
The current evidentiary
Alternatively, the statute
JUSTICE MASSENGALE:
Okay.
So let's start
You're not going to argue that if trustworthy
Right?
Not at all, Your Honor.
Okay.
MARY S. BRAUN, RPR, CSR 5313
So the question
48
02:46
1
is whether trustworthy evidence is an appropriate
02:46
2
standard.
02:46
3
MS. FRANCIS:
02:46
4
definitely appropriate question to ask.
02:46
5
JUSTICE MASSENGALE:
02:46
6
MS. FRANCIS:
02:46
7
Court never supplied a definition for trustworthy
02:46
8
evidence, nor was it defined in the probate code itself.
02:46
9
The fact is even though this Court has said in Cruzan
02:46
10
that states are permitted to set their evidentiary
02:46
11
requirements and procedural requirements for
02:46
12
establishing whether a patient is competent, this Court
02:46
13
has also mandated that in cases that have less final
02:46
14
outcomes than this one, for example, oral contracts or
02:46
15
civil fraud cases, that only a clear and convincing
02:46
16
evidentiary standard could sufficiently protect the
02:46
17
important individual interests at stake here.
02:47
18
02:47
19
here.
02:47
20
any sort of further fact-finding as to whether he is
02:47
21
sufficiently competent to make this decision himself,
02:47
22
that we should terminate his life-sustaining medical
02:47
23
treatment.
02:47
24
02:47
25
It is, Your Honor.
That is a
The --
How do you respond?
-- New Amsterdam Supreme
Stephen Keller's life is in the balance
And the Petitioners would urge this Court without
However, what the Respondents would urge
this Court to do is to at least offer Stephen Keller an
MARY S. BRAUN, RPR, CSR 5313
49
02:47
1
opportunity to demonstrate that he can do this decision
02:47
2
for himself.
02:47
3
02:47
4
to find that this is necessary as a matter of federal
02:47
5
constitutional law that the patient has a due process
02:47
6
right to this standard.
02:47
7
02:47
8
matter of history or tradition in this country that
02:47
9
would show that that's a right that's been traditionally
02:47
10
02:47
11
02:47
12
the Cruzan decision this Court explicitly noted that
02:47
13
incompetent patients do not retain the due process
02:47
14
liberty interest to exercise the right on their own
02:47
15
behalf.
02:47
16
02:48
17
is whether or not Stephen Keller is sufficiently
02:48
18
competent to make this decision himself.
02:48
19
has somewhat demonstrated by evidence of the videotape
02:48
20
that he, in fact, can make these decisions on his own.
02:48
21
Now, to the extent his --
02:48
22
02:48
23
specifically what evidence are you referring to that is
02:48
24
evidence that he can make these decisions?
02:48
25
JUSTICE MASSENGALE:
Well, you're asking us
What can you point this Court to as a
recognized?
MS. FRANCIS:
Well, in fact, Your Honor, in
However, the threshold issue in this case
JUSTICE MASSENGALE:
MS. FRANCIS:
Stephen Keller
But what --
Well, the fact is, Your
MARY S. BRAUN, RPR, CSR 5313
50
02:48
1
Honor, according to page 11 of the record, New Amsterdam
02:48
2
Supreme Court agreed that Stephen Keller did demonstrate
02:48
3
and exhibit a preference on the videotape.
02:48
4
extent that preference is ambiguous, the correct
02:48
5
response is a remand for further fact-finding on Stephen
02:48
6
Keller's competency, not a termination of the treatments
02:48
7
that keep him alive.
02:48
8
susceptible to reversal.
02:48
9
02:48
10
points that the Petitioners brought up, Your Honor.
02:48
11
First, the Petitioners outlined that New Amsterdam --
02:49
12
the 14th Circuit adopted a lower standard of competency.
02:49
13
However, what the 14th Circuit did was to define the
02:49
14
scope of the federal right at issue here and allow MCS
02:49
15
patients an opportunity to demonstrate that they can be
02:49
16
considered sufficiently competent to make this
02:49
17
life-or-death decision themselves.
02:49
18
02:49
19
page 20, paragraph 3, that they would leave it to the
02:49
20
states to set their own evidentiary and procedural
02:49
21
requirements for determining if the MCS patients had, in
02:49
22
fact, satisfied that constitutional threshold.
02:49
23
02:49
24
Court not to rely on medical and scientific data to
02:49
25
determine federal constitutional rights.
Now, to the
Such a decision is simply not
And I would also like to address three main
The 14th Circuit expressly noted on
Additionally, the Petitioners urge this
MARY S. BRAUN, RPR, CSR 5313
However,
51
02:49
1
adopting that approach would be a huge departure from
02:49
2
this Court's jurisprudence.
02:49
3
routinely relies and other courts nationwide routinely
02:49
4
rely on scientific evidence in order to define the scope
02:50
5
of federal constitutional rights.
02:50
6
02:50
7
scientific evidence is supposed to come in at the trial
02:50
8
court level, and there's none of it in this record.
02:50
9
02:50
10
02:50
11
States Supreme Court does not go out and do its own
02:50
12
fact-finding.
02:50
13
MS. FRANCIS:
02:50
14
JUSTICE KEYES:
02:50
15
It's been roundly excoriated for it.
02:50
16
that to happen to us.
02:50
17
MS. FRANCIS:
02:50
18
The fact is in Cruzan, this Court relied on
02:50
19
the persistently vegetative patient's diagnosis to
02:50
20
conclude that that patient could not retain the due
02:50
21
process liberty interest to consent or exercise the
02:50
22
liberty interest at stake there.
02:50
23
02:50
24
demonstrate is that MCS patients are sufficiently
02:50
25
coherent that they can act with purposeful behavior.
The fact is that this Court
JUSTICE KEYES:
MS. FRANCIS:
But ordinarily that
You are correct.
JUSTICE KEYES:
Ordinarily the United
Not at all, Your Honor.
It has tried it and it has.
You wouldn't want
Right?
Absolutely not, Your Honor.
In this case, what the science does
MARY S. BRAUN, RPR, CSR 5313
52
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1
For example, they can reach for objects, showing a
02:50
2
direct relation to where the object is.
02:50
3
respond to yes/no questions that are posed to them.
02:51
4
They can interact with their environments by following
02:51
5
simple commands that are given to them.
02:51
6
it does demonstrate that MCS patients have sufficient
02:51
7
consciousness and awareness about them that we should at
02:51
8
least give these people an opportunity to demonstrate
02:51
9
that they can make these decisions themselves.
02:51
10
02:51
11
New Amsterdam's procedure?
02:51
12
been given that opportunity?
02:51
13
02:51
14
Honor.
02:51
15
New Amsterdam Supreme Court explicitly operated from a
02:51
16
presumption of incompetency on the part of Stephen
02:51
17
Keller himself and, according to page 11 of the record,
02:51
18
found that there was simply no trustworthy evidence that
02:51
19
he would want to continue medical treatment, despite the
02:51
20
presence of this videotape that does cast some doubt as
02:51
21
to what Stephen Keller would choose under these
02:51
22
circumstances.
02:51
23
essentially New Amsterdam Supreme Court shifted the
02:51
24
burden from the Petitioners and forced Stephen Keller to
02:52
25
assert an interest in staying alive.
JUSTICE MASSENGALE:
MS. FRANCIS:
They can
On that basis,
But what's wrong with
I mean, hasn't he already
In fact, he has not, Your
According to page 23 of the record,
Now, in doing so and in so ruling,
MARY S. BRAUN, RPR, CSR 5313
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1
Now, this Court and courts across this
02:52
2
country, particularly in Honoree Wenlin and Honoree
02:52
3
Martin, both the California decision and the Michigan
02:52
4
decision, all concluded that if the courts must err,
02:52
5
then the error must be on the side of preserving life
02:52
6
because the alternative is simply irreversible.
02:52
7
02:52
8
would run the risk that due process liberty interest
02:52
9
would be denied to certain patients under the guise of
02:52
10
02:52
11
02:52
12
insist that in cases where the patient is neither
02:52
13
terminally ill nor comatose nor persistently vegetative,
02:52
14
then due process is not offended by affording these
02:52
15
patients at least an opportunity to demonstrate that
02:52
16
they can make these life-ending decisions themselves.
02:52
17
02:52
18
saying in this situation, wherever -- we should start
02:53
19
from the proposition that the patient would want life
02:53
20
and then work from there?
02:53
21
02:53
22
is the correct position that this Court and that courts
02:53
23
should generally choose because the alternative just
02:53
24
cannot be reversed and is ultimately very final.
02:53
25
requiring --
Adopting the Petitioner's approach, we
competency determinations.
This Court has an opportunity today to
JUSTICE HANKS:
MS. FRANCIS:
So that basically, you're
Absolutely, Your Honor.
MARY S. BRAUN, RPR, CSR 5313
That
Now,
54
02:53
1
JUSTICE KEYES:
You're asking us to set a
02:53
2
bedrock for state statutes that they would have to use
02:53
3
this standard and this presumption in favor of life, and
02:53
4
then they can do whatever they want to in the way of
02:53
5
statutes, but only so long as it comports with our
02:53
6
determination that this is part of their liberty
02:53
7
interest.
02:53
8
02:53
9
02:53
10
he's entitled to exercise, you want us to go on and make
02:53
11
that -- to set a parameter for what -- where the states
02:53
12
can begin to operate?
02:53
13
02:53
14
Respondents ask this Court to set a constitutional
02:54
15
threshold for evaluating competency in MCS patients and
02:54
16
to define the scope of the federal constitutional
02:54
17
rights.
02:54
18
and procedural parameters so long as they do not unduly
02:54
19
frustrate the self-exercise of these important
02:54
20
individual rights.
02:54
21
02:54
22
recognized limitations, to demonstrate that they
02:54
23
understand the nature and consequences of their disease
02:54
24
would not only frustrate MCS patients' exercise of their
02:54
25
liberty interest; it would also deny them any
This person who is minimally competent -is minimally competent and, therefore, has a right that
MS. FRANCIS:
Yes, Your Honor.
The
States are free to set their own evidentiary
Requiring MCS patients, with their
MARY S. BRAUN, RPR, CSR 5313
55
02:54
1
opportunity to demonstrate that they can be sufficiently
02:54
2
competent, regardless of their abilities.
02:54
3
02:54
4
can never be truly understood nor appropriately
02:54
5
measured.
02:54
6
Competency to Consent to Medical Treatment" concluded
02:54
7
that understanding turned on inferential and
02:54
8
unobservable mental processes rather than concrete
02:55
9
observable elements of human behavior.
02:55
10
02:55
11
approach has its failings, this Court has already
02:55
12
addressed that issue in Cruzan versus Missouri
02:55
13
Department of Health when it stated that the
02:55
14
Constitution does not require general rules to work
02:55
15
flawlessly.
02:55
16
imposition of insurmountable hurdles to the free
02:55
17
exercise of a liberty interest.
02:55
18
then it should err on the side of preserving life.
02:55
19
02:55
20
the 14th Circuit's approach, more fact-finding is simply
02:55
21
necessary on Stephen Keller's competency before we can
02:55
22
determine that his life-sustaining medical treatment
02:55
23
should be terminated.
02:55
24
02:55
25
In fact, experts agree that understanding
For that reason, Lauren Roth in "Test of
Now, to the extent the 14th Circuit's
However, the Constitution does prohibit the
And if courts must err,
As to the second main reason for affirming
Petitioners correctly point out that
according to a 2009 BNC neurology study by Caroline
MARY S. BRAUN, RPR, CSR 5313
56
02:55
1
Schnakers, there is a high rate of misdiagnosis between
02:55
2
MCS and PVS patients.
02:55
3
omitted to let this Court know is that those findings
02:55
4
were based on a 1996 study previously.
02:56
5
has progressed exponentially since that time, and what
02:56
6
we do know of MCS patients is that they are interactive,
02:56
7
communicative, and act with purposeful behavior.
02:56
8
high rate of misdiagnosis certainly makes this issue
02:56
9
harder to decide.
02:56
10
02:56
11
example, his advanced directive, Stephen Keller's
02:56
12
advanced directive, essentially as an irrebuttable
02:56
13
presumption against any change of heart that Stephen
02:56
14
Keller might have had.
02:56
15
02:56
16
affirm the judgment of the federal court that a
02:56
17
minimally conscious person who is self-aware and has the
02:56
18
ability to express a preference regarding the
02:56
19
continuation or withholding of life-sustaining medical
02:56
20
treatment is sufficiently competent to have a
02:56
21
constitutional right under the due process clause to
02:56
22
make such a decision.
02:57
23
to affirm?
02:57
24
02:57
25
However, what the Petitioners
Now, the science
The
However, it is not a reason to use, for
JUSTICE KEYES:
So you're asking us to
Right?
MS. FRANCIS:
That's what you want us
Yes, Your Honor.
And the
second part of the 14th Circuit's holding was that
MARY S. BRAUN, RPR, CSR 5313
57
02:57
1
further fact-finding would be necessary on Stephen
02:57
2
Keller specifically.
02:57
3
02:57
4
02:57
5
MS. FRANCIS:
02:57
6
JUSTICE KEYES:
02:57
7
in the cold that statute, however, that New Amsterdam
02:57
8
has because it -- the Supreme Court hasn't really made
02:57
9
all the determinations that are necessary to come in.
02:57
10
mean, you're going to be affecting that state statute
02:57
11
and its constitutionality with this.
02:57
12
02:57
13
determine themselves what -- whether their statute still
02:57
14
holds up with this kind of a standard?
02:57
15
MS. FRANCIS:
02:57
16
JUSTICE KEYES:
02:57
17
02:57
18
02:57
19
fact, New Amsterdam Supreme Court already has had the
02:57
20
opportunity to determine the parameters and scope of its
02:57
21
state probate code.
02:57
22
"trustworthy evidence," to establish whether or not the
02:58
23
patient would want the treatment terminated.
02:58
24
nowhere in the code itself is that term defined, and nor
02:58
25
did the New Amsterdam Supreme Court, applying the facts
JUSTICE KEYES:
In order to make this
determination?
Yes, Your Honor.
That does sort of leave out
I
Shouldn't they be given a chance to
importance.
Well, in fact, Your Honor -I see the issue's
I see it's very important.
MS. FRANCIS:
Yes, Your Honor.
And, in
The fact is that it uses a term,
MARY S. BRAUN, RPR, CSR 5313
However,
58
02:58
1
of this case to that statute and vice-versa, conclude
02:58
2
that there was no trustworthy evidence Stephen Keller
02:58
3
would want to continue his life-sustaining medical
02:58
4
treatment.
02:58
5
02:58
6
New Amsterdam's current probate code also requires --
02:58
7
and I recognize my time has expired.
02:58
8
conclude?
02:58
9
02:58
10
02:58
11
termination of treatment or living with treatment be in
02:58
12
the best interest of the patient.
02:58
13
terminating Stephen Keller's treatment based on a best
02:58
14
interest standard would simply frustrate his own right
02:58
15
to self-determination and put that right in the hands of
02:58
16
someone else.
02:58
17
02:58
18
02:58
19
JUSTICE KEYES:
02:59
20
MS. HUTCHINSON:
02:59
21
02:59
22
02:59
23
Justice Massengale, you correctly noted that allowing
02:59
24
the New Amsterdam Supreme Court to interpret its
02:59
25
statutes, especially Statute Number 294.60, may
The final point I'd like to make is that
JUSTICE KEYES:
MS. FRANCIS:
May I briefly
Also requires -It also requires that the
The fact is that
Therefore, we ask this Court to affirm the
14th Circuit.
Thank you.
May it please the Court.
Two minutes.
Thank you, Your Honor.
Two brief points on rebuttal.
First is to the issue of abstention.
MARY S. BRAUN, RPR, CSR 5313
59
02:59
1
alleviate the need to address the constitutional issue,
02:59
2
something that opposing counsel, in fact, acknowledged
3
during her argument.
02:59
4
And here the law is unclear with respect to
02:59
5
that statute whether or not subsection 1 applies to
02:59
6
minimally conscious patients and whether subsections 2
02:59
7
and 3 apply to both proxies and surrogates.
02:59
8
fact, Ms. Francis in her time before this Court also
02:59
9
noted unclear issues with respect to the trustworthy
02:59
10
02:59
11
02:59
12
rule on this, are we in a position to rule both on the
03:00
13
constitutional interpretation of where this right runs
03:00
14
out and still to abstain in some sense?
03:00
15
both, or is it either/or?
03:00
16
03:00
17
if this Court applied Pullman abstention, which is
03:00
18
appropriate.
03:00
19
did not address its issue, then the federal court may be
03:00
20
able to exercise its jurisdiction and address the
03:00
21
additional issue.
03:00
22
Supreme Court can alleviate the need to address the
03:00
23
constitutional issue is --
03:00
24
03:00
25
And in
evidence.
JUSTICE KEYES:
MS. HUTCHINSON:
Ms. Hutchinson, when we
Can you do them
It can only occur on both
Then if the New Amsterdam Supreme Court
But the fact that the New Amsterdam
JUSTICE KEYES:
The constitutional issue is
still going to be there, and it is raised in this case.
MARY S. BRAUN, RPR, CSR 5313
60
03:00
1
MS. HUTCHINSON:
It is raised in this case,
03:00
2
but it may not be there if New Amsterdam is allowed to
03:00
3
interpret its statute.
03:00
4
constitutional avoidance principle set forth by this
03:00
5
Court in 1936 in Ashwander versus Tennessee Valley
03:00
6
Authority.
03:00
7
03:00
8
issue, opposing counsel's argument that the standard of
03:01
9
understanding will deprive all minimally conscious
03:01
10
patients their due process right is a gross
03:01
11
overexaggeration.
03:01
12
well be able to understand.
03:01
13
recognizes as an interactive state of being minimally
03:01
14
conscious.
03:01
15
Thank you.
03:01
16
JUSTICE KEYES:
03:01
17
03:01
18
THE BAILIFF:
03:27
19
(RECESS)
03:27
20
JUSTICE HANKS:
03:27
21
all of us, we all thought you guys did a very, very good
03:27
22
job.
03:27
23
couple of comments just based on what we saw.
03:27
24
said, we all thought you did a great job.
03:27
25
And that runs with the
And briefly, in response to the second
Minimally conscious patients may very
They are what science
And thus, that is the appropriate standard.
Thank you very much.
The
case is submitted.
All rise.
Okay.
You guys did an excellent job.
Well, on behalf of
We just have a
But as I
I'll start with -- no particular order.
MARY S. BRAUN, RPR, CSR 5313
61
03:27
1
Ms. Hutchinson, very, very good job.
03:27
2
demeanor.
03:27
3
get you riled up.
03:27
4
directly.
03:27
5
03:28
6
that is helpful in thinking about oral argument is that
03:28
7
when judges are listening to oral argument, there are
03:28
8
three things that they're listening for:
03:28
9
you want, tell me the law that entitles me to give you
03:28
10
what you want, and then tell me those facts that I need
03:28
11
to look at to apply the law in your favor.
03:28
12
there.
03:28
13
03:28
14
beginning.
03:28
15
you to do, and you did that.
03:28
16
You have the understanding standard.
03:28
17
eventually.
03:28
18
if you'd just hit me with it.
03:28
19
is what I think the issue is, here is how we think you
03:28
20
need to resolve this issue, and here is why, straight
03:28
21
up.
I liked your composure.
I liked your
Nothing seemed to
You answered all the questions
The one thing I might suggest is something
Tell me what
You got
But I think I set that out at the very
Tell me -- you know, here is what we want
We want a new standard.
You told me that
But I think your argument would be stronger
Here is what I want, here
And I thought very good job.
22
MS. HUTCHINSON:
03:28
23
JUSTICE HANKS:
03:28
24
particular order.
03:28
25
contact.
Thank you.
Ms. Francis -- as I say, no
Really impressed with your eye
In fact, I didn't see you looking at your
MARY S. BRAUN, RPR, CSR 5313
62
03:28
1
notes.
You just went up and you just argued.
That was
03:28
2
very, very impressive.
03:28
3
the fact that you didn't seem to -- you knew the record.
03:28
4
03:29
5
that you kept giving us record references, which is very
03:29
6
helpful.
03:29
7
judges need to go back in the record when they're
03:29
8
writing their opinion or thinking about it to make sure
03:29
9
what they heard is actually what transpired in the
03:29
10
record and what they understood.
03:29
11
references, I thought that was very, very good.
03:29
12
03:29
13
good job.
03:29
14
I mean, not much.
03:29
15
good, but I think if you slowed down a little bit and
03:29
16
followed -- since you were the leadoff, like I told
03:29
17
Ms. Hutchinson, tell me what you want, you know.
03:29
18
me the law.
03:29
19
apply the law in your favor with, in your case,
03:29
20
abstention.
03:29
21
that you want, first of all, and then go from there
03:29
22
because you might not get a chance to set out an
03:30
23
outline.
03:30
24
may start hitting you with questions from the get-go and
03:30
25
you'll never get a chance to tell them, you know, where
I mean, all of us commented on
And the other thing you did really well is
A lot of times when you make arguments, the
And giving record
Ms. Rhodus, I thought you did a very, very
I think I might slow down a bit, just a tad.
I mean, I think your presentation was
Tell
Tell me those facts that entitle me to
Just hit me out there.
Tell me what it is
If you've got a really aggressive panel, they
MARY S. BRAUN, RPR, CSR 5313
63
03:30
1
it is that you want them to go.
So something I'd think
03:30
2
about.
03:30
3
03:30
4
thought you did a very good job.
03:30
5
were the leadoff person, definitely tell us where you
03:30
6
are going, especially -- we were -- we weren't prepared
03:30
7
exactly for your opening argument on the issue because
03:30
8
it wasn't in the materials.
03:30
9
tell us up front the whole outline of where you're going
03:30
10
and then jump back, and that way if the Court really
03:30
11
wants to hear that issue, then they can.
03:30
12
then they know where you're going next so that they
03:30
13
don't disrupt your train of thought and your argument.
03:30
14
03:30
15
little hopefully helpful critiques.
03:31
16
guys did a great job.
17
this point, and we know how much time and effort goes
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into getting to this point.
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of sleepless nights, a lot of preparation.
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professors still demand the same amount of coursework
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from you, even though you're down here, so we appreciate
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that and we're really impressed.
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us to judge the competition.
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Depends on your panel.
And then Mr. Kellam, same comment.
I
But again, since you
If you're going to do that,
If they don't,
But other than that, guys, little comments,
Congratulations for getting to
JUSTICE KEYES:
spoke very well for us.
But overall, you
You know, you've had a lot
And your
It was a privilege for
I think that the judge
And I just want to say for
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myself I thought you-all did a remarkable job of
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fielding my questions which you probably weren't
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prepared for because this is an area, as you may have
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noticed, of particular concern and interest to me,
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extremely much.
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published on where these rights run out and start and
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how you actually deal with this.
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an understanding of how complex and difficult these
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issues are.
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that tough question of -- those tough questions of
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thinking about -- and you prepared on it.
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things work together, and what do I want to get out of
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this, and how do I get there?
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usually what I try to find out, too, is how do I get
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there?
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need and how I get there.
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remarkable job.
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you're saying?
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would come back and say, yes, that's how you get there.
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stands out in this particular moment at one particular
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thing, which is, how do I get to that due process
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argument and make that be the argument here.
I have, in fact, written on it and
And I hope that you-all took out of this
competition today, but also of this whole competition,
I thought you did a most remarkable job on
How do these
And as a judge, that's
Exactly as Judge Hanks said, tell me what you
And I thought you-all did a
What I would say, well, is this what
Is this how you get there?
And you
I thought that Ms. Francis particularly
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And likewise, as her counterpart, I thought
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you did a great job on that.
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job.
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I do know Rooker-Feldman, or I had familiarity with it
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from way back when.
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sorry you brought it up.
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it's outside the materials.
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remarkable job when he did bring up Rooker-Feldman.
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knew what it was, so you were clearly prepared.
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poised, and you could go into a courtroom and make an
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argument and it would be a compelling, well-made
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argument.
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research and to be able to answer those tough, tough
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questions which I think at least some of us threw out at
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you.
I think you all did a fine
You're an extremely poised young man.
Of course,
I don't think it applies here.
I'm
But it didn't occur -- that
I thought you did a
You
I think you were all very well prepared,
And it really is important to do that
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The bailiff had some comments, too, that
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job, and you-all's composure on Team 1 I think is very
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composed and very well rehearsed as far as answering
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questions and being able to separate the questions that
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were sometimes long into their different parts and then
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answering them in turn.
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were slightly different from some of the things we said.
THE BAILIFF:
I thought you-all did a great
And then Team 2, I thought that your
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composure was also very good and you really knew the
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material, and that was evident from -- I don't think you
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brought any notes up there, and that was very
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impressive.
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material and that was demonstrated, so great job.
And you were also very familiar with the
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MARY S. BRAUN, RPR, CSR 5313