Patterico's Pontifications


Calling All Lawyers

Filed under: Court Decisions,Schiavo — Patterico @ 5:04 pm

I have again read the federal judge’s latest opinion in the Schiavo case. Much of it appears sound. The one part that doesn’t ring true for me is the judge’s insistence that no state action is involved in this case. [See UPDATE below.]

This determination seems like an exaltation of form over substance. Michael Schiavo could not legally starve Terri Schiavo without the court’s involvement.

I am especially puzzled by the judge’s statement on page 9 of the order:

Michael Schiavo and Judge Greer are not state actors.

This may well be true as to Michael Schiavo, but it is assuredly not true as to Judge Greer. This statement is directly contradicted by one of the cases the judge cites: Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992), which states:

A county probate judge clearly is a state actor.

I don’t have time to do the proper research (and the judge’s refusal to grant a stay may mean that he didn’t either). So, I am turning to the experts who read this site. I note that the judge appears to be relying upon section 1983 cases. Is he confusing the concept of “state action” for the claims in the Schiavo suit with the requirement under section 1983 that a plaintiff plead an action under color of law? Or are those the same thing?

I’d like the constitutional scholars to weigh in. Xrlq? Clam? Anyone else?

P.S. As I read the order, it struck me that what Congress did was necessarily quite limited in nature — despite the howls of protest you keep hearing from folks across the nation.

The reason is the limited jurisdiction of the federal courts. The law passed by Congress necessarily required a court to examine only violations under the laws or Constitution of the United States. If you accept the judge’s premise that there was no state action in this case, then the federal violations that can be alleged are really quite limited.

If Congress had ordered the federal courts to completely re-review the state decisions to determine whether state law had been applied correctly, that would indeed have been outrageous and improper — and (in my opinion) clearly unconstitutional. What Congress actually did was simply provide an avenue of federal review to ensure that no federal rights of Ms. Schiavo’s had been violated. If Judge Whittemore’s analysis was correct, then we have had that review.

Hysterics: the republic is not broken. You can all calm down.

UPDATE: Two comments below strengthen my argument that Congress’s action was a measured act, as opposed to the outrage so many portray it to be.

First, Matto Ichiban cites authority for the proposition that “state action” under the Fourteenth Amendment is the same as “under color of state law” for sec. 1983. This tends to indicate that the judge got it right — meaning the federal rights that the federal court was entitled to consider were indeed quite limited.

Second, Xrlq reminds us of the (I think rather far-fetched) idea that Congress could have allowed claims based on minimal diversity — which would have entitled the Schindlers to raise state-law claims if one of them had moved out of the state. He also reminds us that, if the Schindlers could have raised a valid federal claim (which they could not), then there would be ancillary jurisdiction to hear state-law claims as well.

This simply means that Congress did not go as far as it could have. In limiting claims to federal questions, Congress did indeed simply provide for the airing of limited causes of action in federal court, to ensure that Terri Schiavo’s federal rights were not violated. That is hardly an extreme measure.

The only thing that makes it sound odd at all is that it was limited to the Schiavo case only — but you can thank Democrats for that. Republicans wanted a broader law; Democrats were the ones who insisted that it be limited to this case. So if you don’t like that aspect of it, write your Democrat legislator and complain.

UPDATE: Ann Althouse says much the same thing about the statute.

16 Responses to “Calling All Lawyers”

  1. […] ou can read here. The decision purports to address the “state action” issue I discussed earlier, and in doing so uses what I believe to be imprecise language: Plaintiffs ar […]

    Patterico's Pontifications » 11th Circuit Rejects Schindlers’ Appeal (0c6a63)

  2. […] tion. P.P.S. Thanks to Xrlq for helping to clarify my thinking on this issue in dialogues here, here, and here. P.P.P.S. Here is a handy reference to the briefs and decisions on the is […]

    Patterico's Pontifications » A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction (0c6a63)

  3. […] tion. P.P.S. Thanks to Xrlq for helping to clarify my thinking on this issue in dialogues here, here, and here. P.P.P.S. Here is a handy reference to the briefs and decisions on the is […]

    Patterico's Pontifications » A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction (0c6a63)

  4. “A county probate judge clearly is a state actor.”

    Best I can understand it, having a judge be the arbiter in a claim does not make the result of a that claim a state action.

    However, a judge who conspires with one of the parties to achieve a result improperly does make the result the required state action.

    The reasoning would be he is no longer simply interpreting a private dispute, but now is excercising independent will outside of his arbitration role.

    actus (f9abe0)

  5. As a preliminary matter, footnote 1 of the opinion seems to foreclose the state action argument: the plaintiffs are not seeking injunctive relief against Judge Greer in his official capacity. But since state action was not found in the prior case as well (which I think was seeking relief in an official capacity), I’ll try to answer the state actor question the best I can.

    The only thing that makes sense to me is that while the judge may be a state agent, the action is not a state action. I commented before that this makes sense if we think about the nature of the rights and duties involved: Terry Schiavo has the right not to be interfered with, either by the state (through an order disregarding her wishes), or by a private party (allowed by the state by disregarding its battery laws). The corollary is that others have the duty not to interfere with Terry’s right by touching her, or as here, giving her nourishment. The situation here is not state action because the state is following its duty not to interfere with Terry’s right. Keeping it in against her wishes, by contrast, would be state action.

    There may also something to thinking about this as an omission rather than an act: the state is not killing Terry, it is ordering the withdrawal of food. Can an omission be state action when there is no duty to perform the act? I haven’t thought about this enough to provide a complete answer, but it seems reasonable to say no.

    Matto Ichiban (c076da)

  6. And “state action” under the Fourteenth Amendment is the same as “under color of state law” for sec. 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 930 (1982). I love Hart & Wechsler.

    Matto Ichiban (c076da)

  7. I don’t agree with your take on limited federal court jurisdiction. If I recall correctly, the “well-pleaded complaint rule” merely requires that a properly drafted complaint raise at least one federal question in order for a federal court to take jurisdiction on that basis. Once the court has jurisdiction, I don’t believe it’s limited to only hearing federal questions, even though the plaintiff may ultimately lose on the federal question while prevailing on the ancillary state law issues. Even if Congress believed the Schindlers had no federal questions at all, they could have instead drafted the law to grant the federal courts diversity jurisdiction based on minimal diversity, thereby requiring only one of them (if that), to quickly move out of state before filing the case. The Schindlers seem committed enough to this issue that I have no doubt one of them would have done so.

    As to the state action doctrine, however, I have to semi-agree with the judge. If every court order were considered a state action, the end result would be that every contract requiring either party to do anything the state can’t do would be unenforceable. I remember raising that issue in Estates and Trusts during law school when discussing Shelly v. Kramer. The prof said I was right, and that courts had, for that reason, generally confined Shelly to its facts.

    Then again, I can only semi-agree because AFAIK, “Judge” Greer’s ruling depends on the theory that Terri Schiavo “wanted” to die in 1990, and is therefore required by law to die now whether her representative claims she wants to or not. To argue that a ruling like that – is not a state action strikes me as too clever by half, as it leaves no private individual in a position to reverse it.

    Xrlq (c51d0d)

  8. Matto, I don’t think the act vs. omission distinction would fly. It’s not as though the state is passively allowing Terri to starve; it’s actively causing that result. Anyone who attempts to attach a new feeding tube, even at his own expense, will be arrested.

    Xrlq (c51d0d)

  9. because terri was NOT TERMINAL and would live if just given sustenance, the removal of the feeding tube amounts to either murder or assisted suicide which are both illegal.

    the state of florida considers feeding tubes to be medical intervention, but other states do not – such as ny.

    so, terri’s folks could say that the defintion in floria is arbitrary and wrong, and allows terri (and other non-terminal dependents) to be starved which would be illegal in ny, AND that the feds must intervene to reinsert the tube so that terri gets as much rights as a ny’er.

    reliapundit (7a5d49)

  10. So, uh, let me try to get my poor, undereducated, non-law-school-training brain around this one.

    The state is obligated to remove the feeding tube in that by allowing it to remain, they are violating her rights?

    That’s a new twist. “We’d love to help you, but since you didn’t specifically ask for or authorize the assistance, to do so would violate your right to privacy.”

    Hmmm… {{scrathes head bemusedly}}

    Partisan Pundit (82462b)

  11. just becasue the fla legislature calls food medicine doesn’t make it so.

    if the fla legislaturte called cars “planes” would that mean they could require a flying license just to drive!?

    As Lincoln said: “If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a leg don’t make it a leg.”

    So let it be with food.

    And all humans need food and water to live, not just patients.

    and – i repeat – Terri was NOT TERMINAL; with sustenance and normal bed-care/toiletry/hygiene she could live 40 more years – by which time there might be better treatment or a cure.

    but it seems to me that the fla definiton of food as medicine and feeding tube as medical intervention is logically very faulty.

    this may not be constitutional but it it REAL.

    a quadriplegic might not be able to feed himself, but not feeding him would be cruel. ditto a severely retarded person. or someone who has other severe physical challenges.

    shall we starve them all!?!?!?

    reliapundit (7a5d49)

  12. 1) No one can be forced to eat against her will, not even quadriplegics or the severely retarded, without violating her right to bodily security (even non-law school brains should be able to get their heads around this one); 2) the state may, and should, put up procedural safeguards to protect the incompetent/incapacitated (such as those who cannot communicate, or the mentally ill), but it is well established that these must pass some level of constitutional scrutiny because they are invasions, see Cruzan; 3) once a determination is made, under the permissible laws of a state, that a person does not want food, then the state is bound not to force feeding, and may order others to stay away, just as it may enjoin any other repeated batteries; 4) there is no duty for a state to feed someone.

    It just isn’t persuasive to distinguish medicine and food; a person may refuse either, unless you think the state may involuntarily force feed anyone at any time.

    These arguments don’t mean it was correct to find Terry’s will was to starve, but this is the legal reasoning in play. Would some of your arguments be made Terry had a living will? Moral quarrels are better directed at the decision-makers here than at the legal arguments.

    Matto Ichiban (c076da)

  13. once a determination is made, under the permissible laws of a state, that a person does not want food, then the state is bound not to force feeding, and may order others to stay away, just as it may enjoin any other repeated batteries;

    Here’s the part I don’t get, Matto. Has a determination indeed been made that Terri Schiavo does not want food? Or just that she does not want artificial life support, defined by Florida courts to include a feeding tube?

    If only the latter (as I believe), there is no violation to her privacy interests to feed her by hand. If it doesn’t work, she’s no worse off. If it does, she stays alive.

    Patterico (756436)

  14. Damn you, Matto, for getting to your fed courts textbook while I wasted another day of our spring break not doing jack.

    The Angry Clam (c96486)

  15. The jury’s out as to whether state action equals color of law. Prior to Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), courts consistently held that they were the same, but in that case they narrowly ruled they were separate lines of inquiry. Then, four years later, the Supreme Court revisited the issue in Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 930 (1982), the case Matto cited above. That case stopped short of overruling Flagg Bros. outright, but certainly narrowed it down a tad. Note that while there was substantial overlap between the majority of each case and the dissent of the other, only one lone Justice, Harry Blackmun, joined in both majority opinions.

    How would the Supreme Court rule today? If I had to bet on it, I’d say they’d go the way of Flagg Bros., which then-Justice Rehnquist authored, and which Justice O’Connor probably would have joined had she been on the bench in 1978 (like Rehnquist, she dissented in Lugar). Of course, everyone’s favorite “Republican” Justice, John Paul Stevens, came down on the opposite side of both cases.

    Xrlq (816c74)

  16. In Shelley v. Kraemer, the Supreme Court held that the issuance of an injunction enforcing a race-restrictive land covenant was state action in violation of the 14th Amendment. There is no need to go any further with the analysis.

    David Hiersekorn (0deca7)

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