Rule 62 -- Stay of Proceedings to Enforce a Judgment
I am not a federal lawyer, so I do not have much experience with federal injunctive practice. But in my state practice, I have sought and obtained Temporary Restraining Orders and Preliminary Injunctions successfully several times.
What struck me about the Congressional act for Terri Schiavo is that it omitted any language authorizing a stay of the state court's judgment. This means that the federal court could just stop the enforcement of the state court judgment. This is a wholly different animal than a preliminary injunction. To seek an injunction is like climbing Mt. Everest: it is very difficult but manageable in the right circumstances. The judge must find that very strict elements are met. Fed. R. Civ. Proc. 65. First and foremost, the party must be likely to prevail at trial. This is what the federal courts have refused to find.
This procedure, though, is much different than a stay. Stays are handed out automatically on the filing of bankruptcy. They usually stay several state court cases all at once. Stays are at the complete discretion of the trial court judge without great elvels of proof required. Fed. R. Civ. Proc. 62.
I feel sorry for Terri's family's counsel. They are under stress from massive scrutiny, but I think they missed the real opportunity that Congress gave them. I hope it is not too late.
Even without statutory authorization, it seems that the stay is the best interim remedy. That would deprive the state court's judgment from being used to prevent her feeding. It would not force the feeding again, but would make it difficult for the medical facility not to re-insert the tube for fear of malpractice in the absence of clear judicial authority pending.
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