Banana Republic or Legalistic Lawlessness?

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan reflects, based on current trends, on what the legal system in the United States will look in a few years. Specifically, Buchanan considers whether the country will become a “banana republic” or whether instead we will see a system of “legalistic lawlessness.”

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In re Guardianship of L.N.

Docket: 2018-0701

Opinion Date: February 19, 2020

Judge: Gary E. Hicks

Areas of Law: Civil Procedure, Health Law, Trusts & Estates

Respondent L.N. appealed a circuit court order denying a motion to authorize removal of life support filed by her guardian. In 2018, tests indicated that L.N. had suffered a stroke. L.N. was 69 years old at the time of the orders on appeal, and had “enjoyed a full, active, independent life” prior to her stroke on September 12. Thereafter, L.N. remained in the hospital on a ventilator to assist with breathing and a nasal-gastric tube for nutrition and hydration. L.N.’s attorney informed the court in a motion for expedited hearing that “[a]fter consulting with personnel, it has been indicated that [L.N.] will probably not survive the massive stroke which precipitated this hospitalization, but there is no one with authority to act.” There was no evidence that L.N. had previously executed either a living will or a durable power of attorney for healthcare. M.C., a former co-worker, was ultimately appointed as guardian. Based upon conversations, the guardian’s sense was that L.N. “would want to be allowed to have a natural death.” Notwithstanding testimony by L.N.’s caregivers and guardian, the trial court concluded that, “in cases of doubt, the Court must assume that the patient would choose to defend life” and did “not find that [L.N.] - under the facts in this case - would choose to have life support removed and a natural death process to occur.” On appeal, L.N. argues that the probate court erred in determining that “it had jurisdiction to make a determination as to the appropriateness, or lack thereof, of the removal of life support in the case of a patient who was in a persistent vegetative state” where “no party challeng[ed] the proposed removal.” She further argued that, even if the court had the authority to exercise its discretion in this matter, its findings were unsupported by the testimony. The New Hampshire Supreme Court reversed the order denying authority to remove life support and vacated, in part, the order appointing the guardian: “Because any limitation on the guardian’s RSA 464-A:25, I(d) authority after the October 17 hearing was not supported by the statutorily-required finding that it was “desirable for the best interests of [L.N.],” RSA 464-A:25, II, we vacate that limitation. Without that limitation, the guardianship order’s grant of the 'right and authority to determine if refusal should be made or consent should be given to any medical or other professional care, counseling, treatment, or service’ constitutes a general grant of authority that includes the authority to withdraw life-sustaining treatment in appropriate circumstances.”

New Hampshire v. Eldridge

Docket: 2018-0551

Opinion Date: February 19, 2020

Judge: Donovan

Areas of Law: Constitutional Law, Criminal Law

Defendant Brian Eldridge appealed his convictions by jury on one count each of possession of a controlled drug, and being a felon in possession of a firearm. He argued the trial court erred by: (1) concluding that the immunity afforded by RSA 318-B:28-b (2017) did not apply to the offense of possession with intent to sell a controlled drug; (2) requiring him to waive that statutory immunity before instructing the jury on the lesser included offense of possession; and (3) denying his motion to suppress evidence. After review, the New Hampshire Supreme Court concluded that the immunity provided by RSA 318-B:28-b did not extend to the offense of possession with intent to sell. However, the Court vacated defendant’s conviction for possession because the Court held that, under the circumstances in this case, defendant was entitled to both an instruction on the offense of possession and the statutory immunity. Furthermore, the Court concluded the police officers’ initial warrantless entry into defendant’s apartment was justified by the emergency aid exception to the warrant requirement.