Md. high court hears religious freedom case

In one of the cases kicking off its fall term, Maryland's highest court is being asked whether a judge violated an Orthodox Jew's right to religious freedom by holding a medical malpractice trial without him and his lawyer during a major Jewish holiday.

Lawyers for Alexander Neustadter of Silver Spring argued before the Maryland Court of Appeals last week that Montgomery County Circuit Court judges got so wrapped up in the "efficiency of the docket" that rather than delay the trial or suspend it for two days of Shavuot, the court trampled Neustadter's constitutional rights.

The upshot, Neustadter's attorney, Thomas J. Macke, told the appellate judges, was that key testimony by witnesses for Holy Cross Hospital went unchallenged in the June 2008 trial. Neither Neustadter, nor his lawyer, whom he ordered not to work on his behalf on the holiday, was there to object to the witnesses' characterizations of points that were crucial to Neustadter's claims about his father's treatment and death in 2003.

"It was prejudicial like we've never seen," Macke argued.

Judge Sally D. Adkins asked if Neustadter's lawyer could have appeared over his client's objections if the judge had insisted.

"You can't cut this in half," Macke said.

Two judges — Joseph F. Murphy Jr. and Mary Ellen Barbera — wondered aloud how courts that handle extreme circumstances and emergencies could not craft a solution with a month's notice, though Murphy said he was less concerned with the court's schedule than with the availability of expert witnesses, whose court appearances are planned in their schedules.

What the judges will consider in weighing the competing interests of religious observance and orderly operation of government is unclear.

Judge Lynne A. Battaglia said that "the court would never have any discretion" if forced to agree to 11th-hour requests for schedule changes and couldn't scrutinize them.

According to the arguments, Neustadter had testified during the trial that he wanted a breathing tube reinserted in the airway of his desperately ill 91-year-old father, Israel Neustadter, a Holocaust survivor who relished each day of his life.

The doctors and hospital contended that Neustadter, with physicians, decided against re-intubating the elderly patient. An expert witness for the hospital told jurors that not re-intubating Israel Neustadter met the standard of care because the patient would not benefit.

The other defendants settled before trial, and, with more than two dozen witnesses no longer being called, trial time was freed up, Neustadter's lawyers contended.

The hospital won at trial. The Court of Special Appeals upheld the verdict. Neustadter asked the Court of Appeals to hear the case.

Michelle R. Mitchell, arguing for the hospital, countered that Neustadter and his lawyer realized soon after the trial date was chosen, in January 2008, that June 9 and 10 would conflict with Neustadter's strict religious observance.

They failed to alert Judge Louise Scrivener quickly that not only could Neustadter not come to court, but he could not allow his lawyer to go.

Neustadter's attorney immediately told the defendants' lawyers. But the conflict was not broached with Scrivener until about a month before trial, Mitchell said. Efforts to switch the order of witnesses failed.

Though courts must reasonably accommodate religious worship, Scrivener said, this was too late to alter the tight court schedule. She told the lawyers that her hands were tied by the crowded docket, shortage of judges and related concerns.

"The trial court's management of its docket is a compelling state interest," Mitchell said.

Timely notice is important for judges filling calendars months away, she said.

Macke argued that the trial could have been pushed back. Scrivener had postponed it from the first trial date at the defendants' request with less than a month's notice.

In a brief supporting Neustadter on behalf of a dozen law professors, University of Baltimore law professor Kenneth Lasson argued that Maryland's high court should consider the state's history of religious tolerance, which dates to the colony's founding decades in the 1600s.

"If the court decides in favor of Neustadter, I wouldn't be surprised if it quotes some of the historical facts to bolster the case," he said.

Lasson said an appeal by either side could be taken up by the U.S. Supreme Court.

The Court of Appeals has no deadline for issuing a ruling.

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