By David Hardy // Attorney
I am an attorney by profession. Several years ago, a client, a large health care facility, approached me to make an argument on their behalf. They sought government funding to cover the cost of care for a patient. My task was to appeal a decision denying that funding.
My clients directed me to the pertinent regulation, which we read together. The language of the regulation seemed to clearly favor them. But that seemingly clear interpretation would have allowed a billionaire to have certain medical procedures paid for by the Medicaid program, which is intended to assist the poor. When I pointed this out, their response was, “Well, doesn’t the regulation say the government should pay? I agreed, and we made our argument.
After our filing, I received a call from a somewhat animated government attorney, who raised the same issue I had raised with my client. I admitted to understanding his point, but I responded that in order to persuade my client to drop the appeal, I needed some legal authority saying that the regulation should be interpreted differently than its plain meaning. I did not hear back from him.
We argued the case several months later, and the appellate court expressed similar misgivings. Afterwards, counsel for the government and I chatted about the case and agreed that we did not know how things would come out.
The court ultimately issued a narrow, muddled decision, effectively saying nothing more than, “The law does not mean what it says, and denying funding.
I thought of this case recently while reviewing an adoption decision from the Utah Supreme Court, In re Baby Q, 2016 UT 29. The case involved an unmarried biological father who was notified prior to the child’s birth of an adoption plan and failed to respond to the notice in a timely fashion. He did, however, take steps to assert his paternity prior to the child’s birth, and he received inconsistent messages from the birth mother. Following the birth, these messages continued, as the birth mother both relinquished the child for adoption and signed a voluntary declaration of paternity with the father, allowing his name to be put on the original birth certificate. The father sought to be involved in the adoption and prevent it from taking place.
The couple argued that the father should have no role in the adoption based entirely upon the father’s failure to respond to the pre-birth notice. Although the trial court endorsed this argument, the Utah Supreme Court disagreed. Despite strong language in the law supporting the adoptive couple, the Court identified a technical flaw in the notice and issued a narrow decision concluding that the father should be heard in the adoption case.
The message from the court in In re Baby Q is similar to the one sent to my clients some years ago. “The law does not mean what it says. Although this may seem harsh and unjust, most attorneys have learned from experience that there are times when a court will deviate from what seems to be a plain statement of the law.
This happens because, while courts are responsible for interpreting and applying the law, they are also responsible for doing justice. As a result, if the law seems to dictate an unjust result, they will seek to interpret the law both to satisfy its terms and to see that justice is done.
This balancing occurs regularly in adoption cases. On many occasions, I have had clients ask why a court will not simply enforce the law as it is written. My response has been fairly uniform: “The court is concerned that justice is not being done; we need to persuade the court that our position is just.
Figuring out when the law does not mean what is says can be tricky. Attorneys cannot always predict when a court will choose an alternative interpretation. It can help, however, to step back from a matter or a dispute and ask whether those involved have been treated fairly. Were they given the opportunity to assert their rights? Was it impossible to do so? Where such questions cannot be answered affirmatively, it may be that the law does not mean what it says.
 It should be noted that the issue was not whether the patient would receive the care. Care had already been provided. The question was who would pay for it. More than anything, it was a test case.
 I should disclose something here. I drafted the pre-birth notice, although I was not involved in further proceedings because my clients elected not to move forward. The adoptive parents relied on my notice. I think the notice satisfied the requirements of the statute, but the Supreme Court disagreed.
 The ultimate outcome of the case is in doubt. Although the father would like to assert parental rights, there is seemingly evidence that would support the termination of any rights he may has.