Patterico's Pontifications


Still More on State Action

Filed under: Constitutional Law,Schiavo — Patterico @ 11:15 pm

For those who are interested, the state action discussion that began at Xrlq’s blog is continuing here.

(Let’s see how long it takes Richard Bennett to try to throw the discussion off.)

2 Responses to “Still More on State Action”

  1. Another kind of state matter. If it is not relevant here, please take it at where it is first posted as a response.

    Xrlq: It could be clear and convincing evidence, or it could be less than that, but not more; that’s the one thing that Cruzan really did make clear.

    You mention Cruzan for Terri’s wish and also the standard of proof for PVS ?

    I am looking at Cruzan v. Director, MDH, U.S. Supreme Court 497 U.S. 261 (1990) and am looking for that needle in the hay stack that says that, Cruzan set the standard of proof for “finding PVA diagnosis” also on clear and convincing evidence. I cannot find it. Can you direct me to it?

    Cruzan v. Director, MDH :

    # “The State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan’s desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan’s observations that she did not want to live life as a “vegetable” did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.” and

    # “However, for the same reasons that Missouri may require clear and convincing evidence of a patient’s wishes, it may also choose to defer only to those wishes, rather than confide the decision to close family members. Pp. 285-287.”

    How do you derive that Cruzan is the legal authority for standard of proof of clear and convincing evidence for a patient’s medical condition. I accept it is THE authority for determining the patient’s wish. But then again, why do we have to resort to Cruzan, when there is an express statutory provision at section 765.401 (3) HEALTH CARE ADVANCE DIRECTIVES of the standard of proof that is required under Florida Statutes that says “a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence.”

    Is this a state matter or federal matter? [ Addition in this post here, as an after thought: Is it like the other case, whose name eludes me that SC allows each state to pass state law on assisted suicide and Oregon passed one and that is being challenged, while SC says there is no constitutional right to die, or something like that? Feel free to correct me, pls. ]

    If it is a state matter, then, why can’t we just look at 765.401 (3) HEALTH CARE ADVANCE DIRECTIVES without relying on Cruzan, and from there, why can’t we take it a step further and ASK what standard of proof should we apply for 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES ? Why can’t we take this bold courageous step?
    Granted that section 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES does not explicitly mention the requisite standard of proof that is to be imposed on the surrogate’s satisfaction that the patient is in a PVS, how can I read it liberally in advance of the highest standard of proof? Is there any legal obstruction to reading it for the highest standard of proof, than for the intermediate standard of proof?

    I would like to be enlightened what this legal barrier or obstruction is, that legally bars forbids prevents a reading that section 765.305 (2) should apply the highest standard of proof.

    I do not know what is the basis for US Supreme Court in Cruzan to use “clear and convincing evidence” in the Missouri case of Cruzan. Maybe you do, and you could enlighten me.

    Is it the Missouri statute in question that spells out “clear and convincing evidence” for the PVS patient’s wishes? Does the Missouri statute have a provision similar to Florida’s 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES which deals with the surrogate’s satisfaction of the patient being in a PVS? If not, what is there to stop us from being adventurous? I would like to be enlightened, Xrlq !

    With such enlightenment as you can give me, I can then reconstruct a conceptual basis for “beyond reasonable doubt” for Florida’s 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES , if the prior conceptualization fails to meet jurisprudential standards.

    While I grip with Greer on other issues, on this issue of standard of proof, he seems to have taken a more conservative stand of citing “beyond all doubt” and “without a doubt” , not without cause or reason, in his judgment in so far as it relates to Terri’s medical condition. The DCA did not even realize that, and just swept it aside .
    DCA at page 2 of 10 said, “The trial court determined based on clear and convincing evidence, that, Theresa Schiavo was in persistent vegetative state and that she herself would elect to forego further use of a feeding tube.” No where in Greer’s judgment can you find Greer holding that “The trial court determined based on clear and convincing evidence, that, Theresa Schiavo was in persistent vegetative state. ”

    Alternatively, if you think that silence or vacuum or lacuna in 765.305 (2) HEALTH CARE ADVANCE DIRECTIVES will obtain the legal default position that civil cases must only use civil standard of proof, then you are saying that it can either be preponderance of evidence or clear and convincing evidence but because of Cruzan setting the standard of proof for wishes to be on “clear and convincing evidence” it must then logically follow or the rule must be extended to its limit and also create a rule of finding whether patient is in a PVS on “clear and convincing evidence”.

    If this is your stretch, why not consider my stretch that I outlined above?

    If you insist your stretch is the right stretch , give me the authority that says, the legal default in civil cases, probate court cases, is and must be and can only be, civil standard of proof, whether the lowest standard of proof or the intermediate standard of proof.

    Yi-Ling (0b1335)

  2. FYI,

    The above post is resolved as^0@.ef272cd/15543 .

    Special thanks to Xrlq, and thanks to Dick Bennet.

    c.c. MD from Philly

    Yi-Ling (09d77d)

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