Patterico's Pontifications

4/17/2005

A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction

Filed under: Court Decisions,Schiavo — Patterico @ 4:32 pm



The Terri Schiavo case is over, but it continues to have importance to the looming battle over judicial confirmations. For example, in a commentary titled Latest Assault on Judges Threatens Rule of Law, University of Chicago law professor Cass Sunstein argued:

The problem, as the legal battle over Terri Schiavo demonstrated, is that whatever their politics, judges are unlikely to ignore the law. In that case, the law clearly did not authorize federal judges to order Schiavo’s feeding tube reinserted — but some Republicans are outraged that the judges did not have it reinserted anyway.

Sunstein is wrong. The law clearly did authorize federal judges to order Schiavo’s feeding tube reinserted. The courts got it wrong.

The courts’ fundamental error was brushing aside the Schindlers’ meritorious argument that the Due Process Clause of the Constitution requires a showing of clear and convincing evidence for the withdrawal of a feeding tube under these circumstances.

If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue. And that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.

I do not believe this means a new evidentiary hearing was required. But, at a minimum, such a determination would require the federal district court to comb through a mountain of transcripts from various proceedings — something Judge Whittemore could not possibly have done in the few hours that he allowed himself to decide the Schindlers’ final claims.

The extended entry discusses the Schindlers’ claim that the federal Constitution requires “clear and convincing evidence” of the patient’s wishes in a case like that of Terri Schiavo. It analyzes how that claim was cavalierly dismissed by the federal courts. It also explains why this was, indisputably, a solid claim that justified the reinsertion of the feeding tube while the merits of the claim were reviewed.

[NOTE: This post is about a legal issue. I welcome any comments about the soundness of my arguments. But any comments that revisit tired arguments about the facts of the Schiavo case will be unceremoniously deleted. You have been warned.]

The Schindlers’ Second Amended Verified Complaint alleged in Claim Eight:

89. The United States Supreme Court, in Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), determined that the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.

90. The February 11, 2000, Order (to discontinue the hydration and nutrition of Terri by feeding tube) was not supported by clear and convincing evidence that Terri would have made the same decision.

The complaint noted the shakiness of the evidence deemed “clear and convincing” by Judge Greer, and pointed to the judge’s clear error (mentioned on my blog here) in rejecting Diane Meyer’s testimony largely on the basis of a mistaken belief as to the date of Karen Ann Quinlan’s death.

Within hours, Judge Whittemore issued an order denying the request for an injunction removing the feeding tube. As to Claim Eight, he ruled as follows:

Plaintiffs contend, relying on Cruzan v. Missouri Dep’t of Health, 497 U.S. 261 (1990), that “the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.” (Dkt. 36 ¶ 89)(emphasis added). Contrary to Plaintiffs’ contention, the Supreme Court in Cruzan did not mandate application of the heightened clear and convincing evidence standard. The question before the Cruzan court was whether the state’s application of the heightened evidentiary standard overburdened the patient’s right to refuse medical treatment, not whether it adequately protected the patient’s right to life.

Given the holding in Cruzan, Plaintiffs cannot complain of a deprivation of Theresa Schiavo’s Fourteenth Amendment procedural due process right. The state court judge applied the heightened clear and convincing evidence standard in determining her intentions, as permitted by Cruzan and in accordance with Fla. Stat. § 765.401(3). To the extent Plaintiffs complain that the quantum of evidence did not rise to the level of clear and convincing, these claimed evidentiary errors are a matter of state law, no federal constitutional law.

Thus, Judge Whittemore dodged the issue of whether the evidence in the Schiavo case was truly clear and convincing, by ruling that this evidentiary standard is not mandated by federal law. But the fact that Cruzan said that the clear and convincing standard is sufficient doesn’t rule out the argument that the clear and convincing standard is constitutionally required. In his unrelenting haste to issue an opinion within a few hours, Judge Whittemore didn’t even bother to address the latter issue.

The 11th Circuit affirmed, and on this issue began its analysis as follows:

Count Eight is a procedural due process claim asserting that under Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the Due Process Clause requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that she would have made the same decision, and that there was not enough evidence in this case to meet that standard. The plaintiffs assured the district court that this was a procedural due process claim. Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp. 2d ___, 2005 WL 677224, at *4 (M.D. Fla. Mar. 25, 2005) (district court order denying plaintiffs’ second motion for a temporary restraining order); Tr. pt. I at 16, pt. II at 15 (Mar. 24, 2005 oral arg. before the district court). The plaintiffs have no substantial case on the merits as to this claim for at least two independently adequate reasons.

First, Cruzan did not establish that the Constitution requires application of a clear and convincing evidence standard before termination of care. The Supreme Court held in Cruzan only that a state could, if it wished, require that evidence of the incompetent’s wishes be proven by clear and convincing evidence. Id. at 280, 110 S. Ct. at 2852 (“The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.”); id. at 284 (“In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.”).

This is as far as Judge Whittemore ever got. To its credit, the panel recognized the issue that Judge Whittemore had missed: the fact that a standard has been held sufficient doesn’t rule out the argument that the standard is required. But any praise for the panel ends there, because it addressed this issue with the following woefully inadequate analysis:

Of course, holding that states may permissibly impose a requirement says nothing about whether states must impose it. One need look no further than the Cruzan opinion itself for that truism. Referring to a previous decision upholding a state’s favored treatment of family relationships in termination of care situations, the Court explained, “such a holding may not be turned around into a constitutional requirement that a state must recognize the primacy of those relationships in a situation like this.” Id. at 286, 110 S. Ct. at 2855. In case we missed the point, the Court reiterated it when discussing another decision: “Here again petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way.” Id.

This does not address whether the relevant precedents would require a “clear and convincing evidence” standard under the federal Constitution. After purporting to recognize the need to decide this issue, the panel says only that the fact that the standard is permissible doesn’t necessarily mean it’s required. Okay . . . but we understood that already. The question is: is it required? The panel doesn’t say. It skips over the issue and says it doesn’t matter:

Second, even if constitutional law did work the way the plaintiffs want, contrary to the explicit teaching of the Supreme Court in the Cruzan opinion itself, they would still not have a substantial case on this claim. Plaintiffs would not, because Florida has adopted the very requirement that they say the Constitution mandates, a clear and convincing evidence standard, In re Guardianship of Browning, 568 So. 2d 4, 15 (Fla. 1990), and it was applied by the state courts in this case, In re Guardianship of Schiavo, 780 So. 2d 176, 179 (Fla. 2d DCA 2001).

I have no quarrel with the fact that the State of Florida had adopted the standard. Of course it had. The question is whether the courts had applied it correctly. On that issue, the 11th Circuit stated:

The plaintiffs argue that the state courts should have concluded that the clear and convincing evidence standard was not met in this case, but a quarrel with the result of a proceeding does not state a claim that due process was not afforded. Stated differently, procedural due process does not guarantee a particular result.

That’s it. The 11th Circuit completely skips over the issue of whether the “clear and convincing” standard is required, by saying that it doesn’t matter — the state applied the standard, and the appellate courts are not required to second-guess the application of the standard.

Wrong and wrong. First, the “clear and convincing” standard is unquestionably required in cases like the Schiavo case. Second, given that fact, the appellate court was required to determine (at a minimum) whether a rational factfinder could have decided that the standard was met. Arguably, the federal courts’ duty was more far-reaching: to determine for themselves whether they believed the evidence was clear and convincing.

Here’s the analysis that the court should have performed, beginning with the analysis that the “clear and convincing evidence” standard is constitutionally required:

The Due Process Clause of the 14th Amendment Requires a Showing of Clear and Convincing Evidence That a Patient in a Persistent Vegetative State Would Have Decided to Discontinue Hydration and Nutrition

The Due Process Clause of the 14th Amendment mandates certain standards of proof in certain types of cases. One commonly understood example is the reasonable doubt standard for criminal trials. That standard is not stated explicitly in the Constitution, but has been imposed as a matter of case law applying the Due Process Clause of the 14th Amendment. In Re Winship, 397 U.S. 358 (1970).

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Addington v. Texas, 441 U.S. 418 (1979).

The Addington case went on to explain that there are three basic standards of proof in the law. The lowest burden of proof is a “mere preponderance of the evidence” — the standard applied in “the typical civil case involving a monetary dispute between private parties.” The highest is the “reasonable doubt” standard applicable to criminal trials. The “clear and convincing” standard is an intermediate burden of proof applicable in cases deemed more serious than the typical civil case, but not as serious as a criminal proceeding. Such cases include deportation and denaturalization decisions, as well as some civil fraud cases in which there is some quasi-criminal wrongdoing by the defendant.

So which would apply in the Schiavo case?

Cruzan explicitly provides clear guidance as to which of these standards of proof is required under the Due Process Clause: the “clear and convincing standard.” Cruzan dealt with the issue of whether the State of Missouri could constitutionally require clear and convincing evidence that a person in a persistent vegetative state would want to die by having nutrition and hydration withdrawn. Cruzan does not hold that the “clear and convincing evidence” standard is required, because that issue had not been placed squarely before the Court. However, the following language unquestionably demonstrates that, if that issue had been placed before the Supreme Court, the Court would have ruled that the standard is required by the Constitution:

In our view, Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'” Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). “This Court has mandated an intermediate standard of proof – `clear and convincing evidence’ – when the individual interests at stake in a state proceeding are both `particularly important’ and `more substantial than mere loss of money.'” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, supra, at 424). Thus, such a standard has been required in deportation proceedings, Woodby v. INS, 385 U.S. 276 (1966), in denaturalization proceedings, Schneiderman v. United States, 320 U.S. 118 (1943), in civil commitment proceedings, Addington, supra, and in proceedings for the termination of parental rights. Santosky, supra. 10 Further, [497 U.S. 261, 283] this level of proof, “or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as . . . lost wills, oral contracts to make bequests, and the like.” Woodby, supra, at 285, n. 18.

We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as “a societal judgment about how the risk of error should be distributed between the litigants.” Santosky, supra, at 755; Addington, supra, at 423. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual’s life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, at 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death. [497 U.S. 261, 284]

(My emphasis.)

I challenge anyone to explain how a court could consider this language and conclude that the “clear and convincing evidence” standard would not be required, were the Court to address the issue.

One thing is clear: the federal courts did not even try. As I noted, Judge Whittemore did not even recognize the issue. The 11th Circuit also skipped the step, but tried to justify it as unnecessary. Their reasoning for this abject failure is shown wanting in the next section.

The Federal Courts Were Required to Determine Whether a Rational Factfinder Could Have Found Clear and Convincing Evidence of Terri Schiavo’s Desire to Have Artificial Nutrition and Hydration Withdrawn

As noted above, the 11th Circuit said that it didn’t matter whether the “clear and convincing” standard is constitutionally required, because they had no authority to second-guess the state’s application of the standard:

The plaintiffs argue that the state courts should have concluded that the clear and convincing evidence standard was not met in this case, but a quarrel with the result of a proceeding does not state a claim that due process was not afforded. Stated differently, procedural due process does not guarantee a particular result.

The panel completely failed to address the fact that federal courts are required to review the sufficiency of the evidence in other contexts where the Constitution imposes a burden of proof. One clear example is criminal cases.

As Judge Tjoflat noted in his dissent to the en banc opinion, the case of Jackson v. Virginia, 443 U.S. 307 (1979) ruled that, when a criminal defendant claims in federal court that the evidence against him in state court did not satisfy the “reasonable doubt” standard, the federal court is required to consider and render a decision on that claim. The Due Process Clause does not require the federal court to hold a new evidentiary hearing in every case (or even most cases), or to examine the evidence anew. But the federal court is required to consider the claim, and decide whether a rational trier of fact could have found that the evidence met the standard.

The Jackson v. Virginia court explained:

A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. . . . A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court.

The Court rejected the argument that this would force federal courts to replicate state criminal trials, noting that “courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact.”

The reasoning of the Jackson case is directly on point here. That case says that, because the “beyond a reasonable doubt” standard is a federal Constitutional standard, a federal court must review whether a rational factfinder could have found that the evidence met that standard. Logically, if the “clear and convincing evidence” standard is also constitutionally required — and I show above that it is — then a federal court would also be required to determine (at a minimum) whether a rational factfinder could have met that standard.

That is what Judge Tjoflat thinks the courts would be required to determine. But arguably, under the law passed by Congress, they were required to go further, and determine whether the evidence actually met the clear and convincing standard. This is because of the requirement of the Schiavo statute that Ms. Schiavo’s federal claims be determined de novo — a standard rarely applied when appellate courts determine the sufficiency of the evidence. It is true that the federal claim at issue here is simply one of due process: did the state order the withdrawal of the tube without evidence meeting the standard of “clear and convincing evidence”? But if that claim is to be judged de novo, then the federal courts arguably should have made their own independent determination of whether the evidence submitted to the Florida courts met the federally required standard.

My tentative view is that this does not mean that a trial would be required. Courts apply a de novo standard of review all the time, without ordering a new evidentiary hearing. However, there is a good argument that the federal courts should have reviewed the record fully and made their own determination as to the sufficiency — and ordered a new trial or hearing if they could not make this determination based on the cold record.

Doing this would require the issuance of an injunction. Given the errors that we know were made by Judge Greer, the plaintiffs had a substantial claim on this issue. An injunction was necessary to allow the district court more than a few hours to make this determination.

We would never allow such dismissive treatment of a death penalty case. Why is it thought acceptable here?

Finally, some may argue with my position by saying that, if I’m right, the Supreme Court would have reversed the 11th Circuit. Such an argument fundamentally misunderstands the meaning of a denial of certiorari. A Supreme Court denial of cert. is not a ruling on the merits, and means nothing.

Let me know what you think of the above analysis.

P.S. I have e-mailed this post to Professor Sunstein for his reaction.

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 issue:

  • Judge Whittemore’s order denying the injunction. (Here is my initial post on his order.)
  • The 11th Circuit’s order affirming (2-1) Judge Whittemore’s decision.
  • Judge Whittemore’s second order, refusing an injunction pending a hearing as to claims Six through Ten. (My initial posts on Judge Whitemore’s order are here and here.)
  • The panel decision of the 11th Circuit affirming the denial of the injunction. (Here is my initial post on that decision.)
  • The 11th Circuit’s denial of en banc rehearing. Appended to this order is Judge Birch’s concurrence, opining that the law was unconstitutional; the concurrence of Judges Carnes and Hull; and the dissent of Judges Tjoflat and Wilson. (Here is my initial post on that decision.)

293 Responses to “A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction”

  1. […] D in Philly on Schiavo Original Documents and TestimonyPaul Deignan on Gays in the Military Patterico's Pontifications » 2005 » April » 18 (0c6a63)


  2. […] be strong. I have explained at length my reasons that I believe the courts got it wrong, here. I am joined in th […]

    Patterico's Pontifications » My Position on the Courts and Terri Schiavo (0c6a63)

  3. Very well done. The only thing I’d have done differently is to add an alternative argument that even if the due process clause does not require clear and convincing evidence, it absolutely, positively MUST require a preponderance of evidence – and the federal courts didn’t even review it for that.

    Xrlq (c51d0d)

  4. Congress failed to pass the bill that would have made their intent clear. The judges, looking for a way out, actually looked to Frist’s statements tin opposition to determine their intent. If Congress wants to force the courts, they have to wield more power and not just suggest it, and hope the courts will follow through.

    Justene (f69c0c)

  5. My non-lawyerly opinion is that you are precisely on point. What bothers me most of all in this case is that an injunction to reinsert Terry’s feeding tube and fluid supply should have been issued until all the federal courts had ruled.

    The way it was handled would be tantamount to not issuing a stay in a death penalty case while the courts decided what the issues. Meanwhile, the defendant has been executed. Can you even imagine that happening?

    antimedia (e64125)

  6. The Schiavo case revisited
    Patterico provides an in-depth analysis of the legal issues in the Schiavo case and concludes that th…

    Media Lies (11ee8e)

  7. In some cases, yes. I think it was Robert Alton Harris’s case, where the Ninth Circuit issued so many fake stays that eventually the Supreme Court shut them down and barred them from issuing any more no matter what.

    Your basic point stands, though: courts shouldn’t be allowing people to die while issues are still pending, unless it is clear that one of the litigants is just manufacturing new issue after new issue to keep them alive. Which, one mighyt argue, the Schindlers did, but Congress? They’re allowed to make new laws.

    Xrlq (c51d0d)

  8. I’m curious about something. Suppose Congress had simply passed a law (and the president signed) that feeding tubes cannot be withdrawn until a federal district court has held a full evidentiary hearing, taken testimony, and in general, held a full trial.

    Would the federal courts have similarly brushed it aside as unimportant? Is it that they just don’t recognize the right of Congress to mandate new law on cases that have already been before a judge?

    Dafydd

    Dafydd (df2f54)

  9. Judge Lied, Terri Died
    Patterico proves beyond a reasonable doubt that Judge Whittemore and the Eleventh Circuit fell down on their job on the Terri Schiavo case….

    damnum absque injuria (38c04c)

  10. The courts’ fundamental error was brushing aside the Schindlers’ meritorious argument that the Due Process Clause of the Constitution requires a showing of clear and convincing evidence for the withdrawal of a feeding tube under these circumstances.

    I seek clarification. If the courts had decided that as they claim and repeatedly claim [also DCA Order March 16, 2005] to have said that “clear and convincing evidence for the withdrawal of a feeding tube under these circumstances” was there; how does one further the argument, that, it is a fundamental error that such evidence was not there and that DP requires showing such evidence and thus there is a breach of DP.

    Would not such argument be questioning whether the prior courts had made the right factual finding of fact as to whether such evidence was there?

    Yi-Ling (9d70c9)

  11. I don’t agree, Pat. While I haven’t given this the study you have, to the extent that the Schindlers’ were arguing that the due process clause requires a clear and convincing standard before terminating life, they are dead wrong. The Eleventh Circuit was absolutely correct that all the Supreme Court did in Cruzan was hold the Missouri procedure was constitutionally permissible, not that it was constitutionally mandated.

    I agree with Justice Scalia, that the Constitution doesn’t say anything at all about this issue, other than requiring that a fair procedure exist. This is from his concurrence:

    “While I agree with the Court’s analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide–including suicide by refusing to take appropriate measures necessary to preserve one’s life; that the point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve his or her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about ‘life and death’ than they do) that they will decide upon a line less reasonable.”

    Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 293 (1990) (Scalia, concurring).

    Finally, like all good conservatives, I absolutely detest substantive due process arguments, even when they are being used to bring about a result I agree with (i.e. keeping Ms. Schiavo alive).

    Roscoe (2a9539)

  12. Well put Patterico. Really nicely done.

    Joel B. (30cfc6)

  13. Roscoe,

    First, nothing in that quoted language — save possibly the language about the federal courts not belonging in this field — is inconsistent with my argument. Even that language is properly understood only when you understand that Justice Scalia is assuming that the “clear and convincing” standard has been met, and arguing that once it has been, it is up to the States whether to honor the patient’s wish to die.

    Second, how do you deal with the language from Cruzan that I quoted in the post — language that is part of an analysis that Justice Scalia says he agrees with?

    Third, I don’t believe that these are substantive due process arguments, but procedural ones. Just as the In Re Winship case is a procedural due process case setting forth the “beyond a reasonable doubt” standard. Do you agree with In re Winship? If so, what’s the difference?

    I can well imagine a Justice Scalia arguing contrary to my conclusion — but he would have to argue that the In re Winship – Addington – Santosky line of cases was incorrectly decided because the federal courts have no business setting standards of proof. He would also have to explain away the quoted language in Cruzan. That’s a tall order.

    I think you need to look into this a little more closely. I too am a big fan of Justice Scalia’s, but I am very confident that my analysis is right under the law. Anyone who disagrees *has* to explain away the language quoted in Cruzan — and just calling it dicta isn’t enough, because it’s based on a long line of cases whose logic is clear and compels the result I advocate.

    So far, nobody has explained that language — including the federal judges who ruled against the Schindlers.

    Patterico (756436)

  14. Roscoe, I’m not a lawyer, so I may be talking through my hat, but….

    What I took from Patterico’s argument was that the Court in Cruzan had everything before it to rule that a standard of “clear and convincing evidence” was required under the 14th Amendment, if only that had been the question being decided: the dicta clearly indicates that is what they would have done.

    But that wasn’t the question; the question was only whether Missouri was allowed to set such a standard. So even though the Court made it clear it would have held that all states were required to set that standard or the stricter one, all it actually did was rule that Missouri was in the clear for having done so.

    But if the 11th Circus had taken its responsibilities seriously, it would have reasoned thus: we are asked to decide whether a clear and convincing standard (or stricter) is obligatory… and since the Supreme Court did not address that question in Cruzan, we will address it ourselves. Looking at the list of cases cited by the Court, we find that federal case law requires such a standard. Therefore, we shall examine this case and the evidence that was presented to the judge to see whether we, as a federal appellate court, find that the federal standard above was met.

    If I’m correct in what Patterico was arguing, then it is a non sequitur to note that “all the Supreme Court did in Cruzan was hold the Missouri procedure was constitutionally permissible, not that it was constitutionally mandated.”

    It is irrelevant, since nobody claims the Court held that it was mandated. But since the Court did not decide that question, somebody has to; and since the case is before the 11th, that “somebody” is them.

    Patterico further argues (and here I have no idea, since he depends up on case law I have no access to) that the weight of prior case law would force the 11th to hold that such a standard was federally mandated. The Supreme Court could of course overturn that, if they decided to take the case and make an issue of it. But the 11th is bound by precedent, and they would have to mandate the standard.

    That is Patterico’s argument, as I understand it. And if so, then your argument does not answer the call of the question.

    If I have it all wrong, please tell me where.

    Dafydd

    Dafydd (df2f54)

  15. Why didn’t the parent’s lawyers plead this?

    actus (0f2616)

  16. Why didn’t the parent’s lawyers plead this?

    Jeez Louise, Actus. Why didn’t you read the post?

    They did.

    Patterico (756436)

  17. Dafydd,

    You talk well through your hat. You summarized the argument precisely.

    Patterico (756436)

  18. “They did. ”

    I don’t doubt they gave your same conclusion, but did they give your same analysis? If they did, why not just cut and paste their analysis?

    actus (ebc508)

  19. Complaints don’t generally provide legal analysis. To the extent this one did, it ineptly misstated Cruzan’s holding, giving Judge Whittemore a cheap out.

    Patterico (756436)

  20. “Complaints don’t generally provide legal analysis.”

    Right. But I would imagine if they want relief NOW they would have briefed their cause of action to show a likelyhood of winning in order to get their TRO.

    actus (ebc508)

  21. Okay Pat, I did some more study. I read the Constitution a couple more times, and it still doesn’t say anything about the proper evidentiary standard for removal of feeding tubes. (Which was precisely Scalia’s point in the Cruzon concurrence). I thought it was the liberals that are able to see stuff in the Constitution that isn’t there because it gets them the result they want. How about if we don’t play that game.

    As for Curzon itself, it sounds like we agree that the issue before the Court was whether the Missouri standard for clear and convincing evidence was constitutionally permissible, not whether it was constitutionally required. As such, the holding of the case is limited to that issue.

    As to whether there is some dicta in the case suggesting that in the right situation the Court would make the Missouri standard mandatory, I really don’t think so. Here is the part you set out in bold face:

    “In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, at 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death.” [497 U.S. 261, 284]

    Not the clearest statement in the world, I will admit. But “[t]he same” in the last sentence appears to be a reference to the fact that the issues in Cruzan and Santosky were alike, in that both were irrevocable.

    Finally, you ask whether I agree with In re Winship. Its the same issue; I have no problem with the result, but I think that the good people of California were perfectly capable of setting a standard of proof for criminal cases without the Supreme Court’s help.

    And Dafydd, I agree that the Eleventh Circuit could have reached and invented a new constitutional right by pretending that the Constitution required something that is neither in the text nor the original intent. After all, that is what the Supreme Court did the other month, in inventing a constitutional prohibition on the death penalty for murderers younger than 18. I guess they could have even found a Belgian court decision to rely on. But I would leave that type of constitutional analysis for the liberals (which was the point of my original comment).

    Roscoe (2a9539)

  22. Roscoe, I think you’re missing the forest for the trees. It is true that the due process clause of the 14th Amendment does not state the specific quantum of evidence required before a patient may constitutionally be starved to death. It is also true that the Fourth Amendment, while purporting to protect citizens from “unreasonable” searches and seizures, doesn’t tell us a f’n thing about what searches and/or seizures are or are not reasonable. Nor, I might add, does the Eighth Amendment provide any real guidance as to what fines are excessive or what punishments are cruel or unusual. That doesn’t mean judges should duck these issues and judicially nullify the Fourth, Eighth and Fourteenth Amendments by ruling they don’t mean anything at all. All three are worded in a way that basically invites interpretation, so courts should interpret them. That’s their job. [Interpreting them badly is not part of their job, but that’s a different issue.]

    I agree with Patterico that the due process clause requires clear and convincing evidence, but recognize that a nonfrivolous argument can be made to the contrary. One can, for example, argue that both the liberty interest at issue in Cruzan and the life interest at issue in the Schiavo case are valuable enough that states may protect them with the clear and convincing standard, yet cheap enough that they need not do so if they do not wish to. But to the extent that it recognizes both interests are within the ambit of the Fourteenth Amendment at all, it cannot be reasonably read to give states the option of depriving citizens of either without any evidence at all, as Judge Whittemore effectively ruled. Unless, of course, you think the Fourteenth Amendment can reasonably be paraphrased to read “no state shall deprive any person of life, liberty or property unless it wants to.”

    Xrlq (6c76c4)

  23. Xrlq – As Scalia pointed out in the Cruzan concurrence, there is nothing in either the text or the history of the 14th Amendment that purports to impose a standard on this issue. As such, it should be left for the states to decide (the old democracy thing).

    On your main point, I agree that there is a due process argument if the state doesn’t have a standard or doesn’t apply it consistently. Frankly, I don’t know whether that happened here, because I haven’t been following the case as closely as I should have been (the old work thing).

    Roscoe (2a9539)

  24. A couple of points:
    1. The federal courts denied the TRO because the Schindler’s couldn’t prove likely success on the merits at a hearing. The due process question was part of it, but the standards for granting or denying a TRO is a lot different than granting regular motions. Congress screwed the pooch in not considering this as part of their bill.
    2. Re: Santosky and Cruzan. I think you confuse what the Court is saying here. The Court is simply saying the decision in both cases is final and irrevocable. The Court says nothing about evidence standard here. Given that the Court, as you cite earlier, only suggests a clear and convincing standard, it is up to the state courts and lower courts to adopt their own standards. Again Congress could have made its own judgment here on the appropriate level of evidence and did not.

    Karl (3ffbb1)

  25. Perhaps I have the good fortune to number you among my readers. If so, you are already aware that I wrote two scathing lacerations of the ineptitude exhibited by Congress, one in my regular column at Jewish World Review and one at The American Spectator.

    http://www.spectator.org/dsp_article.asp?art_id=7980

    That having been said, may I offer a legal theory that I believe could have been applied here with a modicum of creativity. Namely, the idea of the Federal Government appointing a guardian to supersede the State guardian. Now this idea is of the “out-of-the-box” variety, so let me give it a moment of development.

    It seems clear that the status of “citizen” applies only as a description of a relationship with the Federal Government. One is a citizen of the United States and a resident of, say, Florida (like Terri Schiavo and me).

    Theoretically, one could be a citizen of the United States and not be a resident of any state. Sell your house and move for a full year to another country and I don’t believe that any State can claim jurisdiction over you as its resident.

    Now, the institution of guardianship is usually left to the State to apply, within the context of its protection of residents. However, in theory there is no reason that the Federal Government cannot appoint a guardian for a person’s rights of citizenship. That guardian would not be answerable to any State court.

    Arguably, this might even be doable by order of the Executive branch alone, but it could certainly be done by the Legislative. The Congress could have passed a bill appointing Jeb Bush or some such personage as the guardian of Terri Schiavo, and the authority of Michael Schiavo would have been superseded and consequently circumvented.

    No? Let’s hear from all those finely honed legal minds.

    Jay D. Homnick (3f31f4)

  26. Roscoe, my copy of the Constitution seems to be missing the Old Democracy Thing Amendment, so I’ll need you to clarify that issue a bit further. Is it your position that the due process clause, applicable by its terms only to the states, merely requires states to follow their own laws? If so, what on earth was that supposed to accomplish? Prior to and even during the war, the slave states were quite good at applying their own laws. That was the problem.

    I’m curious as to how many other provisions of the Reconstruction Amendments you would nullify by democratic (or, in this case, state judicial) fiat. The equal protection clause doesn’t say much about its own meaning, either, so should states be allowed to go back to the “separate but equal” rule if they so choose? Or is the Old Democracy Thing Amendment limited to the due process clause?

    Xrlq (ffb240)

  27. “Arguably, this might even be doable by order of the Executive branch alone, but it could certainly be done by the Legislative.”

    Under what? the 14th amendment, section 5?

    actus (ebc508)

  28. Xlrq – Try articles 1 and 2, and the 10th Amendment.

    The rest of your argument is attacking a strawman. I wasn’t saying that the due process clause was meaningless, I was only saying that it didn’t impose a substantive standard of proof necessary to remove a feeding tube. If the Constitution doesn’t speak to it, that means we “let” the people decide.

    Roscoe (2a9539)

  29. I think it would be an overreach to have the federal government appointing guardians, but it would be a quite proper use of Amendment 14, Sec. 5 for Congress to pass a statute requiring clear and convincing evidence in cases like this one. On paper, it would do little more than duplicate the text of the applicable state laws, but in practice, it would provide an extra layer of safety if the original judge screwed up.

    Better still, why not require advance directives generally, then allow clear and convincing as an alternative only in narrow cases to cure technical defects (e.g., where two witnesses attested rather than three, or where a lucid patient agrees to all the major terms over the phone with his disinterested attorney, but goes PVS before the attorney arrives with a copy in hand for him to sign). Would a federal law like that really be so bad?

    Xrlq (5ffe06)

  30. Roscoe, Articles I and II spell out the enumerated powers of the federal legislative and executive branches, respectively, but they say relatively little about democracy generally, and nothing whatsoever about state level government, democratic or otherwise. Amendment 10 does talk of states “rights,” of course, which is different from democracy per se. But it clearly doesn’t apply here, as the Tenth Amendment applies by its terms only to those powers not delegated by the Constitution to the federal government or prohibited to the states. Depriving people of life and liberty does not fall into that category, being squarely within the cross-hairs of Amendment 14. So you’ve now successfully identified three constitutional provisions that don’t bolster your position at all. Now you just have to find one that does…

    I wasn’t saying that the due process clause was meaningless, I was only saying that it didn’t impose a substantive standard of proof necessary to remove a feeding tube.

    If, as a matter of federal constitutional law, the due process clause doesn’t require any particular amount of proof, then what, praytell, does it require? If you really think your interpretation of the due process clause means anything, apart from requiring states to follow their own laws, then you should have no trouble identifying some act which, had Judge Greer taken it, would have violated even your ultra-narrow version of the due process clause. What is it? [Yes, I got the part about the Constitution not mentioning feeding tubes by name. Never mind that. The Constitution also doesn’t mention nooses, guillotines, iron maidens, rat poison, guns, electric chairs, intentional drug overdoses, or any of the other various and sundry means by which any given state could deprive any given person of life. That doesn’t mean the state gets to do these things; it means that the method of killing is an irrelevant detail.]

    Xrlq (e2795d)

  31. “Better still, why not require advance directives generally, then allow clear and convincing as an alternative only in narrow cases to cure technical defects (e.g., where two witnesses attested rather than three, or where a lucid patient agrees to all the major terms over the phone with his disinterested attorney, but goes PVS before the attorney arrives with a copy in hand for him to sign). Would a federal law like that really be so bad?”

    Doesn’t that already exist? and the issue here is basically a rehearing?

    actus (ebc508)

  32. Obviously not in Florida, as none of the Schiavo triplets even alleged Terri had expressed her alleged wish with quasti-testamentary intent. At the federal level, I thought the emergency statute made it pretty clear this stuff was supposed to get a fresh look at the federal level, but it didn’t exactly turn out that way, did it? And even if it had, it would have solved the problem for Terri only, rather than providing appropriate safeguards for future cases.

    Xrlq (e2795d)

  33. Terri Schiavo revisited
    Patterico makes an analysis of the legal arguments surrounding the Schiavo case and concludes that the courts should have granted the temporary injunction to reinsert the feedin tube. As always, a worthy read….

    Physics Geek (1483fa)

  34. Patterico (and others) a couple of questions.

    1. How much of your analysis depends on Greer’s final ruling ordering rather than permitting the tube to be removed?

    2. Suppose Schiavo had been serving a life term in the Florida prison system. What federal constitutional constraints would there be if Florida wanted to pull her tube?

    James B. Shearer (fc887e)

  35. “Obviously not in Florida, as none of the Schiavo triplets even alleged Terri had expressed her alleged wish with quasti-testamentary intent”

    I misunderstood as clear and convincing in all cases. I think the reason to not require advance directives is there might be clear and convincing evidence outside that. and to require more would violate someone’s constitutional right to have treatment withheld with clear and convincing.

    actus (ebc508)

  36. Perhaps, but that sounds like a stretch. Advance directives aren’t that hard to prepare, and they’re a lot more reliable than off the cuff remarks. That’s why we require dead wills for inheritance, rather than relying on parol evidence that the decedent promised to leave such-and-such to so-and-so. I don’t think it’s too much to ask the same in matters of life and death.

    In any event, merely adding a federal layer of review shouldn’t deprive anyone of any rights. If the evidence really is clear and convincing, it should stand up in federal as well as state court.

    Xrlq (5ffe06)

  37. XRLQ, Patterico and Roscoe (mainly Roscoe),

    I think you are all arguing past eachother because of Roscoe’s misinterpretation of Scalia’s concurrence in Cruzan. Scalia’s point was that the U.S. Constitution says nothing about the substantive issue of whether a State may regulate – indeed, may prohibit altogether – a decision to, in effect, commit suicide, in that case (and Schiavo’s case) by withdrawing food and water. Hence, Scalia says:

    “I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; American law has always accorded the State the power to prevent, by force if necessary, suicide–including suicide by refusing to take appropriate measures necessary to preserve one’s life; that the point at which life becomes ‘worthless,’ and the point at which the means necessary to preserve it become ‘extraordinary’ or ‘inappropriate,’ are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.”

    Scalia’s statement that the federal courts have no business in this field is limited to the substantive determination of at which point life becomes “worthless” and what means of preserving life are “extraordinary.” Hence, what Scalia is really saying is that a state could pass a law declaring how disabled and near death one must be before the state will allow that person to choose to commit suicide. On this point, the U.S. Constitution says nothing, according to Scalia (though I’m not so sure he’s right).

    However – and this is the key point – Scalia’s concurence says nothing about the standard of proof to be applied in determining whether a particular person has actually made the choice to commit suicide. Assume Missouri passes a law declaring that only persons in a persistive vegitative state may legally deprive themselves of food and water to cause their death. No matter how badly messed up one is, or how much pain one is suffering, unless in a PVS you can’t commit suicide. According to Scalia, the U.S. Constitution says nothing about this law, or whether persons suffering great pain and on the verge of death have a Constitutional right to commit suicide (by whatever method).

    The rub is, once Missouri has passed such a law, does the U.S. Constitution say anything about the standard of proof required in determining whether a PVS person actually chose to commit suicide by dehydration and starvation? On this question, Scalia’s concurrence is slient (and hence off topic, which is why he says he agrees totally with the main opinion and puts this off-subject stuff in a concurring opinion). And, I think, Patterico’s analysis of the dicta in Cruzan, and the holdings of the cases in that dicta, is absolutely correct.

    Ben Pugh (1527b3)

  38. “Perhaps, but that sounds like a stretch. Advance directives aren’t that hard to prepare, and they’re a lot more reliable than off the cuff remarks.”

    Its a stretch till the first case comes along.

    “In any event, merely adding a federal layer of review shouldn’t deprive anyone of any rights. If the evidence really is clear and convincing, it should stand up in federal as well as state court.”

    I have no idea what the issues would be with federalizing this, or with having fed courts second guess state level findings of fact de novo

    actus (ebc508)

  39. Roscoe, forgive me, but your argument reminds me again why I chose not to go to law school, even after scoring extremely well on the LSAT and despite my attorney father’s urging and offer to pay all expenses.

    I read the Constitution a couple more times, and it still doesn’t say anything about the proper evidentiary standard for removal of feeding tubes.

    Yeah. Nice. This argument is structurally identical to the folks who argue that the 2nd Amendment applies only to matchlocks and sabers. “It doesn’t say a word about assault weapons!”

    And Dafydd, I agree that the Eleventh Circuit could have reached and invented a new constitutional right by pretending that the Constitution required something that is neither in the text nor the original intent.

    Oh, Roscoe. The courts constantly “require[] something that is neither in the text nor the original intent,” and you, personally, have no objection when they do so. Numerous examples have already been cited.

    Your understanding of, e.g., the constitutional theory of Scalia and Bork and such is churlish. Neither judge would ever argue that courts are not allowed to interpret necessarily vague passages in the Constitution. Does Antonin Scalia argue that the State of Massachusetts should be allowed to create the Catholic Church of Massachusetts and support it by taxes? That was perfectly permissible at the time the Constitution was written; but in the twentieth-century era of “incorporation,” the Court extended many of the protections in the Bill of Rights to prohibit state action as well as federal.

    Yet that is still not found, even today, in the federal Constitution: you have no explicit right to freedom of speech, press, assembly, or petition against your state; you have no explicit right to bear arms if your state wants to confiscate all guns; you don’t even have an explicit right to stop the state from quartering highway patrolmen in your spare bedroom, since they clearly are not “soldiers.”

    You cannot be “twice put in jeopardy of life or limb” for the same offense; but that says nothing about being twice put in jeopardy of prison or a hefty fine.

    So do you argue that you can be tried multiple times for the same offense, so long as it’s not a capital offense and you’re not threatened with having your hands severed or a limb gnawed off? Of course not; you rightly recognize that the courts must interpret this passage to mean that you cannot be tried twice for the same offense period, regardless of the possible sentence upon conviction.

    I read the Tempting of America very carefully, wherein Judge Bork lays out his judicial philosophy very plainly. He revisited the subject in Slouching Towards Gomorrah, which I also pored over. Bork argues against judicial overreaching… but he certainly admits that judges have a proper role in interpreting constitutional, statutory, and case law, for heaven’s sake. If they didn’t, who would? Would you require Congress or the legislatures to enact laws so specific and so narrowly focused that you would basically need a separate law tailored for each individual prosecution?

    So please, cut out this nonsense that, because the Constitution doesn’t mention feeding tubes or Terri Schiavo by name, that means no federal judge can properly interpret any standard at all mandatory upon the states for dealing with Schiavo-like situations. You’re just tying up the line with absurd non-arguments, which must be laboriously rebutted over and over.

    Dafydd

    Dafydd (df2f54)

  40. Due Process Arguments in the Schiavo Case
    Patterico has a lengthy and detailed anlaysis of the Constitutional issues in the Schiavo case….

    The Spoons Experience (5ac6f4)

  41. Very interesting discussion. Not to rehash old arguments, but I think it’s relevant again to think about state action when casting the right to have life preserved. It is Terri Schiavo’s right not to be interfered with that is at stake, not the power of a state to end life on its own. Patterico’s quotation of the Cruzan Court’s citation of Santosky v. Kramer is helpful in thinking about the issue of life/state interference with the end of life, but is not on point for defining a substantive right: that case was about the state taking away someone’s children, not a something like a custody dispute. This is classic state action, just like imposing the death penalty, arresting someone, or collecting a tax.

    Saying the Constitution thus requires clear and convincing evidence before someone will be allowed to end her own life does not follow from Cruzan or from analogy to the reasonable doubt standard in the criminal law since both are examples of the state imposing its will on the individual, depriving him of life, liberty, or property. Without state action, however, the state deprivation of liberty only consists of interfering with the individual’s right to refuse food and hydration, not a state deprivation of life. Without state action, there is no Due Process Clause right, and thus no violation.

    Such a right might exist in cases where the state is pursuing on its own to remove care, for example from someone in a state-run institution, on the grounds that the patient wanted this result. That is not the case here, however, and constitutional rights define state powers and define individual rights against the government. Implying a restriction of personal liberty imposed by the Constitution seems quite novel, so I don’t know that the courts got it wrong here by not finding a federal right to CCE.

    Also, I know people disagree with me about the state action part of this case, and may argue that the state (via Judge Greer) was actually imposing its will on Terri Schiavo, but I think one would be hard pressed to say this is not how the federal courts viewed this case, and that’s really what matters here.

    Anyway, this doesn’t answer the question of whether the courts had no power to enjoin the removal of the tube, but it’s something to think about.

    Matto Ichiban (fc2e43)

  42. Patterico, two more questions.

    1. What part, if any, does the law passed by Congress play in your analysis?

    2. A convicted killer is on state death row. He wishes to drop all appeals. ACLU suit claims he is not competent. What standard of proof as to his competency is constitutionally required?

    James B. Shearer (fc887e)

  43. Excellent analysis.

    This post goes straight to the absurdity of the knowability of “wishes” fiction and exposes the power grap by the courts for what it was–unconstitutional.

    Paul Deignan (ccc08c)

  44. My saying that the Constitution “doesn’t say anything” about the standard in this case was just shorthand which I thought everyone here would understand (Xrlq does, I think, he’s just trying to win an argument). Obviously constitutions have to be interpreted, so for example when the Fourth Amendment mandates that warrants be issued only on probable cause, the Court has to determine what “probable cause” means. It has certain tools, for example the state of the search and seizure case law at the time the Constitution was drafted, the debates of the framers, etc.

    Unfortunately, when these tools don’t lead to the “right result,” the courts sometimes make up stuff that isn’t there to help out. An example was Map v. Ohio, when the Supreme Court decided that the Fourth Amendment was somehow “incorporated” into the due process clause so it could be applied to the states. (Dafydd argues that by my reasoning the First Amendment would not apply to the states. In fact, the Bill of Rights was drafted as a check on Federal power only, which is how it was interpreted until the middle of the last century. When the First Amendment was passed there were still some state established churches in existence, and nobody thought it was a problem. And so yes, Dafydd if you asked Justice Scalia or Judge Bork, they would both tell you that if the people of Mass. were silly enough to establish a state religion the First Amendment, as it was originally written and intended by the framers, wouldn’t prevent it). For the most part, I think the wholesale incorporation of the Bill of Rights into the due process clause of the Fourteenth Amendment was a mistake; most of the bad things predicted by Justice Harlan (the younger) in the Mapp dissent have since taken place.

    In the present situation, there is no historical argument for supposing that when the due process clause was drafted the framers meant a “clear and convincing evidence”standard in this situation. Why not a preponderance of the evidence? Why not beyond a reasonable doubt? Everyone says that the Court has to “interpret” the due process clause, but nobody provides a justified basis, from either the text of the due process clause or the history of the Amendment, to choose one standard over another. Were the Supreme Court (or the Eleventh Circuit) to pick one of these standards as a basis for overruling the state of Florida’s decision, it would be judicial legislation, pure and simple. In other words, a Court would be overriding the will of the people of the State of Florida because it doesn’t like the result they came up with.

    I admit my view of the due process clause of the Fourteenth Amendment is narrow, but I don’t think it’s unreasonable. I probably agree with Scalia, who in the BMW v. Gore case (involving punitive damages) rejected the use of the clause as “a secret repository of substantive guarantees against ‘unfairness'”:

    “The Constitution provides no warrant for federalizing yet another aspect of our Nation’s legal culture (no matter how much in need of correction it may be), and the application of the Court’s new rule of constitutional law is constrained by no principle other than the Justices’ subjective assessment of the ‘reasonableness’ of the award in relation to the conduct for which it was assessed.”

    BMW of North America, Inc. v. Gore 517 U.S. 559, 599 (U.S.1996) (Scalia, dissenting).

    Roscoe (b3d06a)

  45. Obviously constitutions have to be interpreted, so for example when the Fourth Amendment mandates that warrants be issued only on probable cause, the Court has to determine what “probable cause” means. It has certain tools, for example the state of the search and seizure case law at the time the Constitution was drafted, the debates of the framers, etc.

    That’s precisely my point exactly on due process.

    In the present situation, there is no historical argument for supposing that when the due process clause was drafted the framers meant a “clear and convincing evidence” standard in this situation.

    No more or less so than in any of the other cases where courts have held such a standard is required.

    Why not a preponderance of the evidence? Why not beyond a reasonable doubt? Everyone says that the Court has to “interpret” the due process clause, but nobody provides a justified basis, from either the text of the due process clause or the history of the Amendment, to choose one standard over another.

    That’s why I conceded that merely requiring a preponderance of evidence, while probably wrong and certainly inconsistent with other court cases, is a justifiable alternative. The only alternative that is clearly not justifiable is the one the court took, which was to rule in effect that it doesn’t require anything at all.

    And so yes, Dafydd if you asked Justice Scalia or Judge Bork, they would both tell you that if the people of Mass. were silly enough to establish a state religion the First Amendment, as it was originally written and intended by the framers, wouldn’t prevent it).

    All nine Justices would agree that this was the original scope of the First Amendment. As to the implication that Justice Scalia and Non-Justice Bork would allow states to establish their own churches today, I plead ignorance as to Non-Justice Bork, while noting that you’re wrong on Justice Scalia. Taking on the doctrine of selective incorporation may well be consistent with his originalist views, but thus far he has declined to do so. Note the conspicuous absence of Justice Scalia’s name from this concurring opinion by Justice Thomas in the Newdow case. Justice Thomas stood alone in his incorporation challenge, despite wording it carefully enough to make clear that he was only challenging the incorporation of the Establishment Clause, and not the incorporation doctrine as a whole. Nor is it clear he should. While there is no justification for the incorporation doctrine as it happened (via the due process clause, which courts have traditionally overused), there is plenty of justification for the incorporation of the individual rights secured by it under the privileges and immunities clause (which courts have been equally bad about underusing, having judicially nullified it in The Slaughterhouse Cases.). That is probably where Justice Thomas was going with it; individual rights are incorporated, structural limitations on government are not. I personally would have liked to have seen Justice Scalia on board with that, but it didn’t happen.

    Were the Supreme Court (or the Eleventh Circuit) to pick one of these standards as a basis for overruling the state of Florida’s decision, it would be judicial legislation, pure and simple.

    Nah. By failing to pick any of these standards, or even to create a new one, the courts refused to follow a duly enacted statute requiring them to apply a constitutional provision passed by a supermajority of both houses of Congress, and 3/4 of the state Legislatures (including, FWIW, Florida’s). Refusing to apply any standard solely because Congress neglected to specify which standard should apply was a judicial repeal of an act of Congress, coupled with a judicial nullification of a Constitutional provision.

    In other words, a Court would be overriding the will of the people of the State of Florida because it doesn’t like the result they came up with.

    That’s not an argument for James Whittemore’s ruling on the Schiavo case, it’s an argument against having a constitution at all. It’s also pure B.S., at least in this case. To that any part of Florida’s government can claim to speak for The Will Of The PeopleTM, it’s the Florida Legislature, not the Florida courts, and the Florida Legislature added the very same requirement Patterico thinks the Constitution requires: clear and convincing evidence. The only way a duplicative federal requirement could “violate the will of the people” in this case was if lawmakers actually intended for Florida’s “clear and convincing evidence” to refer to a lower standard of proof than that same phrase connotes in federal courts, or elsewhere. Besides, aren’t you the one arguing that “due process” merely means states have to do what their laws say they have to do? If so, then by failing to ensure that the Florida courts adhered to the minimum requirements adhered to by Florida Satutes, Judge Whittemore didn’t even ensure that your minimalist version of due process was adhered to.

    Xrlq (ffb240)

  46. Dafydd argues that by my reasoning the First Amendment would not apply to the states. In fact, the Bill of Rights was drafted as a check on Federal power only, which is how it was interpreted until the middle of the last century. When the First Amendment was passed there were still some state established churches in existence, and nobody thought it was a problem. And so yes, Dafydd if you asked Justice Scalia or Judge Bork, they would both tell you that if the people of Mass. were silly enough to establish a state religion the First Amendment, as it was originally written and intended by the framers, wouldn’t prevent it.

    Roscoe, you committed two very ugly rhetorical sins in this one paragraph.

    First, your little history lesson clearly implies that I was unaware that “when the First Amendment was passed there were still some state established churches in existence, and nobody thought it was a problem.”

    Dafydd, you fool, how could you not even know that there were state churches back then? We can dismiss everything you say because you’re so historically ignorant!

    May I call your attention to the very comment of mine to which you were responding:

    Does Antonin Scalia argue that the State of Massachusetts should be allowed to create the Catholic Church of Massachusetts and support it by taxes? That was perfectly permissible at the time the Constitution was written; but in the twentieth-century era of “incorporation,” the Court extended many of the protections in the Bill of Rights to prohibit state action as well as federal.

    Surprise, not only did I already know the “bombshell” you think you’ve dropped, I actually brought it up myself in the original post!

    (The exact, same tactic was used the last time I had this exact, same discussion, in a different venue with different participants — pretending that I was ignorant of something that I had in fact cited myself in the original post. Is there some rhetorical guerilla camp that teaches this dodge?)

    Your second sin is both more subtle yet also more quotidian; everybody does it. Rather than respond to my point, you switch to a different point where you feel more comfortable.

    I asked (supra) whether Scalia would rule that the state of Massachusetts today could establish the Catholic Church of Massachusetts… but what you responded was that Scalia and Bork would agree that Massachusetts could have had a state church two hundred years ago — about which, again supra, there never was any controversy, much as you might enjoy pretending there was.

    For heaven’s sake, Roscoe. You’re an attorney — can’t you simply answer the call of the question?

    Do you actually claim that Antonin Scalia or Robert Bork would argue that today, this date, 19 April 2005, a state of the United States could establish its own state religion? Or that it should be allowed to do?

    If so, please cite one, single example of either man making the argument that the Court should rule that the First Amendment no longer applies to the state… which would be one of the most breathtaking reversals of stare decisis in the history of Supreme Court jurisprudence.

    I personally find it very suspicious when one side in a debate must stoop to rhetorical dirty tricks, rather than simply arguing the point. You know very well that I knew what the Framers meant; and you know very well that, as XLRQ has noted, Justice Scalia (and Robert Bork in his books, which XLRQ did not address) has never made the argument that the Court should today undo the entire incorporation doctrine.

    Dafydd

    Dafydd (df2f54)

  47. To pick this thread a bit more….

    If, in fact, it is reasonable to accept established court jurisprudence when it has become woven into the very fabric of the judicial branch of government — hence come to be relied upon by the other two branches — unless there is an error so wildly egregious that it justifies uprooting decades of tradition and settled law… if the doctrine of stare decisis has any value, that is, in a democratic republic under the rule of law… then there are some consequences.

    One of them is that you cannot argue every case de novo, as if there were no previous rulings on the subject. Caselaw — points and authorities — matter and must be addressed.

    So address them, Roscoe. Take up the cases cited by Patterico and discussed by XLRQ and try to rebut them, either by arguing that they were wrongly quoted, wrongly interpreted by Patterico, et al, or superceded by subsequent case law.

    * If the first, correct the quotation.

    * If the second, show how your interpretation of all the cases differs from Patterico’s and why we should accept your interpretation instead.

    * If the last, then cite other, later cases that contradict the ones that Patterico cites.

    All you have done so far is argue that those cases were wrongly decided in the first place. But so what? We all disagree with the Supreme Court now and then. What evidence do you offer that this incorrect judgment (in your opinion) is of such an egregious nature that it’s worth ripping apart decades and decades of settled law, just to correct it?

    I think we all need a lot more than someone just saying ‘well, because I think they were wrong.’

    Patterico says the 11th Circus Court could have and should have ruled differently, according to precedent. If you want to argue that the precedent is actually something very different, that’s fine.

    But if you want to argue that the precedent should be overturned (as you seem to be doing), you’re going to have to bring a heck of a lot more to the table than so far you have even essayed.

    Dafydd

    Dafydd (df2f54)

  48. Dafydd is right on in his last comment.

    I might agree with someone who says that the cases I cite were all wrongly decided. Who knows? I’d have to hear their argument, and determine whether I found it convincing. So far, I don’t find Roscoe’s convincing.

    And if you accept this long line of Supreme Court cases as valid precedent, the most likely ruling would be as I have stated: the Constitution requires clear and convincing evidence under these circumstances.

    This is clear from the language in Cruzan.

    I think Roscoe has dodged the language I quoted from Cruzan, picking out only the parts he believes are easier to refute, giving them a ridiculously crabbed reading, and utterly failing to see what the Court was really saying.

    Patterico (08c813)

  49. But any comments that revisit tired arguments about the facts of the Schiavo case will be unceremoniously deleted. You have been warned.]

    I commit this Patterico’s identified sin. That aside, ….

    If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue.

    So that’s the reason Cruzan tip toed around Missouri’s statutory clear and convincing evidence standard, although on first brush most make the mistake of reading or offering Cruzan as the authority for requiring clear and convincing evidence standard.

    Thus in Florida, with Chapter 756, where at least there is statutory clear and convincing evidence standard, for patient’s wish, it is a state law issue, that, coincidentally also sits happily with the standard considered permissible by Cruzan.

    If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue. And that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.

    Going with your hypothetical if “the Constitution requires a clear and convincing evidence standard”, I cannot understand your conclusion “that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.”. I would have thought the job of the federal courts or state courts would be just to see if the state law met the federal standard set by the high court. If “X” state’s statute had prescribed “preponderance of evidence” standard on patient’s wish, then it could have been struck down for not meeting the constitutional requirement of “clear and convincing evidence standard”.

    However, in this situation, I do not agree that it is the job of the courts to set the standard, more so, if the state legislature has decided on the standard. To support this, I offer Michael’s lawyer’s opening address in the medical malpractice suit, where he says … $ 6 to $ 12 million is needed to care for her for 50 years. If there are 80,000 PVS patients, the cost will show the burden to state and family. The legislature are thus in a better position than the courts to make that decision of standard of proof, given there is the $ economic dimension, and other dimensions.

    Thus, Judge Whittemore dodged the issue of whether the evidence in the Schiavo case was truly clear and convincing, by ruling that this evidentiary standard is not mandated by federal law. But the fact that Cruzan said that the clear and convincing standard is sufficient doesn’t rule out the argument that the clear and convincing standard is constitutionally required.

    I am puzzled, for while I find issue with the finding of fact on she is in a PVS, I find no issue with Judge Whittemore’s “To the extent Plaintiffs complain that the quantum of evidence did not rise to the level of clear and convincing, these claimed evidentiary errors are a matter of state law, no federal constitutional law.” Would it have been better had, Whittemore hypothetically said, “Fla. Stat. § 765.401(3) clearly shows without a doubt that Florida’s state laws comply with evidentiary standard permitted by federal law, and a fortiori, whether the quantum of evidence rise to the level of clear and convincing, and whether there are evidentiary errors are a matter exclusively then of state law.”

    In his unrelenting haste to issue an opinion within a few hours, Judge Whittemore didn’t even bother to address the latter issue.

    If you agree with “Fla. Stat. § 765.401(3) clearly shows without a doubt that Florida’s state laws comply with evidentiary standard permitted by federal law, and a fortiori, whether the quantum of evidence rise to the level of clear and convincing, and whether there are evidentiary errors are a matter exclusively then of state law.” then the persistent stand by the appeal courts, presumably reflected too in Whittemore’s decision, which I have not read, but that as appears in DCA, March 16, 2005, page 2 goes, “The trial court determined, based on clear and convincing evidence, that Theresa Schiavo was in a persistent vegetative state and that she herself would elect to forego further use of a feeding tube. This court affirmed that judgment. …” would show that Whittemore did address the latter issue, but within his perspective, though not within your perspective which presumably he would have disagreed with had it been pointed out to him. I am speaking from standpoint of my Post No. 8 above, and if my comments are not as Whittemore would have answered you, the fault is mine, not his. That’s besides too the point that, unless otherwise convinced, I think there is no clear and convincing evidence of her being in a PVS, especially after newer ideas creeped into the neurological world with introduction of MCS in 2002, 2 years after Greer’s original order.

    We would never allow such dismissive treatment of a death penalty case. Why is it thought acceptable here?

    This is a new area of jurisprudence, and a new frontier where the court and legislature are at it again, as to who dictates the law and morality of it. I must confess that initially I did not see this constitutional challenge mounted here, as a constitutional challenge to Florida Statute Chapter 756 Advanced Health Directives, but it is. It’s a constitutional challenge, based on one’s interpretation of the constitution and the case laws on it, stare decisis, binding precedents, ratio vs obiter, to obtain the end result that, there has been infringement of her constitutional rights. I do not think such an approach, especially in new frontiers, should take such a common law approach, and the legislatures are better at balancing the interest of the individual, the society, current and future interests and welfare, where limited resources in a highly competitive world, needs careful judicious and wise application of financial resources and manpower. In addition, as Scalia has pointed out the failings of the common law approach to constitutional interpretation, where the constitution a code – a device or creature of the civil law system, requiring then a civil law approach, but instead is foistered with a common law approach of stare decisis and binding precedent, leads constitutional interpretation astray. In this situation, if the constitutional approach is as obtained on this forum, I have to sadly agree with Scalia.

    I therefore urge to consider a constitutional approach that trusts the 50 state legislatures to deal with this issue in their renderings of own brand of state law, eg. Fla. Stat. Chap. 756; and consider that Cruzan would have found no wrong with Fla. Stat. Chap. 756. From this premise, I would be happy to hear what constitutional faults there are with this Terri case and Whittemore’s.

    Yi-Ling (f97105)

  50. Fla. Stat. Chap. 756.
    Fla. Stat. Chap. 765.

    Yi-Ling (f97105)

  51. “So please, cut out this nonsense that, because the Constitution doesn’t mention feeding tubes or Terri Schiavo by name, that means no federal judge can properly interpret any standard at all mandatory upon the states for dealing with Schiavo-like situations. You’re just tying up the line with absurd non-arguments, which must be laboriously rebutted over and over.”

    (1) I look for neat solutions once and for all.

    (A) How about, either the federal court examine the Constitution from every angle and then fix a federal standard for all the states [ hopefully that would appease constitutional scholars who cannot help but bite that, this is not just a state matter, but also a federal matter, though I disagree, but appeasement is what I said !] so that, there will be no errant state which passes laws at a lower standard than the federal standard or a higher standard than the federal standard. Thus uniformity is achieved and so too constitutionality.

    (B) The alternative is the federal court confirm unequivocally that, it is a matter entirely left to the discretion of the each state’s legislature. That way too, the states in particular the state legislatures know ahead what is the score, and they will aim for it. That way, there will be no needless litigation over each section of the state law, when the issue of standard of proof arises, be it standard for (a) proof of in a PVS, or (b) proof of patient’s wish, or (c ) defence against suit for wrongful decision made by proxy.

    (2) So if Cruzan, did neither. That it did not fix a federal standard, and yet did not give the green light to state legislatures that whatever they fix, it is alright by the high court, maybe we need Cruzan II to settle that once and for all and close the possible floodgate of litigation either by (1)(A) or (1)(B).

    Maybe you can find a more refined way to envelope my point before you find it consumable or palatable :-)

    Yi-Ling (59e35b)

  52. Yi-Ling, I think you’re misreading the issue. No one is disputing the constitutionality of F.S. Chap 756 in general, or its evidentiary requirement in particular. The re is no doubt that the clear and convincing standard of F.S. Ch. 756 is constitutional. The question is whether F.S. Ch. 756 is the only applicable law that was violated fi whether that standard was adhered to in Terri’s particular case. That, in turn, depends on what the federal Constitution (or other applicable federal law) requires.

    Judge Whittemore was charged with reviewing the federal issues only. Thus, if Judge Greer’s alleged failure to correctly apply the clear and convincing standard (or any other) violated only federal law, then Judge Whittemore was right to brush the issue aside. But if the 14th Amendment requires clear and convincing evidence, that requriement is not met simply because a state law purports to require that also. It’s met if and only if the evidence in her particular case actually rose to that standard.

    Xrlq (e2795d)

  53. “But if the 14th Amendment requires clear and convincing evidence, that requriement (sic) is not met simply because a state law purports to require that also. It’s met if and only if the evidence in her particular case actually rose to that standard.”

    As I see it, when Fla. Stat. requires “clear and convincing evidence” that requirement is not met simply because there is in existence Fla. Stat. but it is met when the judge finds there is “clear and convincing evidence”. This is within the purview of the trial court and as affirmed upwards [ issues aside in this case, whether the appellate affirmation is right]

    Why bother then to add another layer, and say, the federal standard is also clear and convincing evidence, and therefore, this standard is met “if and only if the evidence in her particular case actually rose to that standard.”

    Do you see an overlap, like putting two layers of transparencies on each other, except that instead of different pictures, it’s the same picture.

    I think there is no need to add an overlapping layer, of the same standard as the first standard itself would be sufficient compliance with due process.

    And by your argument, does the 14th amendment apply to defence of “good faith” standard, by proxy when sued for wrongful decision? Here 14th amendment standard would be different from Fla. stat. standard.

    According to Xrlq,
    14th amendment standard – clear and convincing evidence
    Fla. stat- good faith

    So what’s going to happen when the two transparencies of different picture overlap? :-)

    Yi-Ling (307cc4)

  54. No one is disputing the constitutionality of F.S. Chap 756 in general, or its evidentiary requirement in particular.

    F.S. Chap. 765 has more than 1 standard, and the example given above of “good faith” is an instance of a standard that differs from clear and convincing.

    Are you then not disputing the “good faith” standard also found in the same statute?

    Yi-Ling (307cc4)

  55. I’m not talking about the good faith standard, which applies to a different issue. I’m talking about the clear and convincing standard, as applied to determining Terri Schiavo’s wishes. While it is clear that Florida law required the clear and convincing standard to be met, that doesn’t mean that the standard was in fact met. That is the question Whittemore should have ruled on, but didn’t.

    Xrlq (ffb240)

  56. Someone may have already covered this (I didn’t have time to read all of the comments), but you, and everyone else parroting this bogus analysis has a huge blind spot – THERE’S NO STATE ACTION THEREFORE NO SUBSTANTIVE DUE PROCESS CLAIM.

    Let me try to explain. The 14th Amendment acts as a limit only on governmnet, not on the populace. To turn the 14th Amendment into a limit on individual action would give the court’s general legislative power (ie – courts could rule you had a right to employer provided healthcare and then you could sue in federal court to force your employer to pay for that coverage). Thus, to state a claim for a 14th Amendment violation, you must allege that the harm you are suffering is either coming from a state government or from someone acting on the behest of a state government.

    Now, what happened to Terri Schaivo? Contrary to the intellectually-lazy characterization that she was being “deprived of life” by the courts, the truth is that they did no such thing. The Florida courts merely determined, after several appeals, that Micheal Schaivo was her rightful gaurdian and therefore empowered to make decisions as to what she would have wanted in this situation. If Micheal Schavio had decided, after the Schindlers had lost all of their federal appeals, that he wanted the feeding tube put back in, the hospice would have done so.

    Now I know what some of you are thinking, wasn’t the tube removed upon the order of the court? Not really. The court ordered the removal only because that was what Michael had pettitioned for. The courts were declaring that he had the right to do what he was doing and that what he was doing was not a crime under Florida law. As pointed out in the federal court opinions in this case, 150 years of US precedent is clear that such a declaration is not “state action” for substantive due process purposes.

    Nor should it be. If it was, then federal courts could review any state court decision – a contract dispute, an landlord-tenant hearing – and reverse it because it didn’t like the outcome. I can’t believe that’s what conservatives want.

    Contrast this with the termination of parental rights (something I dealt with a lot in a recent pro bono case) – here the STATE is ordering that children be taken away from a parent. Sure, this is sometimes at the urging of the other parent, but the difference is crucial if we are to avoid a judiciary with absolute power.

    Because there’s no state action, there’s no substantive Due Process claim, and therefore, the court rulings in this case were spot on. I hope I’ve convinced everyone who’s read this post because, frankly, there’s no real room to disagree. Arguing that the Schindlers had a federal claim here is like arguing that the sky is red.

    AngryLawyer (94b15e)

  57. AngryMoron, you have no idea what you are talking about. Here’s a brief, nonexhaustive list of reasons:

    1. This discussion is about procedural, not substantive, due process.
    2. Not that that matters, of course, as the state action doctrine applies to nearly the entire Constitution, not just the due process clause, and certainly not just the due process clause when it’s interpreted as applying substantive due process.
    3. If you had bothered to read the cases Judge Whittemore and the appellate judges cited as ostensible authority for the position that judges aren’t state actors, you know that none of those cases actually support that proposition, and one contradicts it outright.
    4. You obviously didn’t read Cruzan, either, the entire analysis of which depends on the theory that wrongly enforcing a person’s alleged death wish violates a life interest protected by the 14th Amendment. Without that, Cruzan probably would not have been decided as it was, since the court also held that a court’s refusal to enforce a patient’s dying wishes could violate a protected liberty interest. Under your analysis, the balancing act would have been between a liberty interest on the one hand, and absolutely nothing on the other.
    5. Judge Greer’s last order specifically required the tube to be removed, it did not merely permit Michael Schiavo to act as he did. If Michael Schiavo had privately acted to keep the tube in, he could have been held in contempt.

    I do appreciate your doing pro bono work. Based on the quality of your argument here, however, I fear that your clients may not be getting their money’s worth.

    Xrlq (ffb240)

  58. Xrlq –

    Sigh.

    I’m getting tired of my legal skills being attacked simply because I’m smarter/better educated than most people, like you for example. I’ve never lost a case and I’ve never had to settle a case for on less than favorable terms.

    I’m going to try to explain this once more, and then if you don’t get it, then I’m going to assume that you simply lack the cognative ability to understand the issues.

    First, to the extent there was ANY claim here, it had to be based on substantive, not procedural due process. Procedural due process analysis only looks to whether someone’s rights were adjudicated with the requisite amount of PROCESS. This has nothing to do with outcomes. The procedural claim would have been, the Florida court procedure somehow didn’t hold enough hearings, or some other frivolous argument. The Schinler’s even made such an argument in federal court when they claimed, hillariously, that Terri was denied procedural Due Process because she didn’t have her own lawyer present during the state court proceedings.

    So, what’s left? Only the argument that there is a Federal due process right to life (which I recognize) and that a federal court must find, irrespective of the state court findings, that the patient has enunciated a desire to refuse noursihment by clear and convincing evidence in order to properly safeguard that right.

    Second, you say that when a judge decrees the legal rights and responsibilities of the parties before it in a civil matter, that’s “state action”? You’re joking right? Or are you retarded? Of course, there are times when a judge may be engaging in “state action,” this isn’t one of them. And if he is, then ANY state court ruling in a civil case is reviewable by a federal court. Please.

    Of course I read Cruzan, I just have the intelligence to understand it. In that case, 4 members of the Supreme Court expressed the view that there is a substantive due process right to DIE, not a right to be kept on life support indefinitely. It also held that the clear and convincing standard of proof of someone’s wishes did not necessarily violate that right. Sheesh! And it’s a perfect example of the state action issue. There, the state was intervening in an attempt to stop the cessation of life support. The state would have been preventing an act by private individuals. Get it? The balancing act to which you refer is the balancing of the STATE’s interest (to keep people on life support) vs. that of the individual (to die according to his/her wishes). This is exactly the type of balancing test that courts engage in all the time (think – state’s right to protect the unborn vs. mother’s substantive due process right to terminate pregnancy).

    Micheal Schavio was given guardianship over his wife. The wording of the court’s order notwithstanding, he had a right under FL law to act in her interests. If he had wanted to, he could have reinserted it, and he would not have been held in contempt.

    Finally, next time you insult someone, perhaps you should actually make sure you know what you’re talking about. I went to a top ten law school, graduated near the top of my class, and work at a top twenty law firm. I’m paid top dollar because I’m that good. Now, I know that because you’re a conservative you just can’t stand the fact that liberals have been right on this all along. But we have been. Get over it.

    AngryLawyer (94b15e)

  59. Sure, AngryLawyer, the whole problem is that you’re just too damned smart. FWIW, I went to a top 10 school myself, which at the time was among the top 5 in terms of student selectivity. While I did not make Order of the Coif, I certainly did better than average, and the only reason I can’t say more than that is because my alma mater doesn’t rank students. And I’ve also never lost a case, though in fairness I should note I’m a transactional attorney and therefore have never argued one, either. Then again, it’s not like you’ve exactly come out and said how many cases you’ve one, either. My guess is that the total number of cases you’ve won or lost on any issues related to this one is about the same as the number I have.

    Since you’re so sure that reviewing the evidentiary standard is a substantive rather than procedural due process issue, perhaps you’d care to share your superior legal wit with Judge Whittemore and the appellate judges who ruled on this case. Seeing as these issues were all discussed under Count 8, titled “Procedural Due Process,” and not under Count 10, “Substantive Due Process,” that case must have been extremely painful for a legal eagle like you to read. Even more painful is to read the discussion of Count 10, which flies in the face of your theory by stating what we commoners had suspected all along: “a finding that a right merits substantive due process protection means that the right is protected against certain government actions regardless of the fairness of the procedures used to implement them.” Yeah, that sounds like the place to be discussing the adequacy or inadequacy of any particular evidentiary standard. Uh-huh.

    The balancing act to which you refer is the balancing of the STATE’s interest (to keep people on life support) vs. that of the individual (to die according to his/her wishes).

    Oh please. If the Cruzan court thought it was balancing one constitutionally protected interest against another, constitutionally unprotected one, dontcha think they might have struck a balance more favorable to the constitutionally protected one?

    This is exactly the type of balancing test that courts engage in all the time (think – state’s right to protect the unborn vs. mother’s substantive due process right to terminate pregnancy).

    Or better yet, don’t, since unborn children have no Fourteenth Amendment rights at all, while adults – even severely disabled ones – do. A better analogy, if any state were to do something that dumb, would be a law allowing fourth trimester abortions or beyond.

    Second, you say that when a judge decrees the legal rights and responsibilities of the parties before it in a civil matter, that’s “state action”? You’re joking right? Or are you retarded?

    No, but I’d have to be to hire anybody who argues like that to represent my interests in court. Are you sure you didn’t mean “top ten” among unaccredited schools?

    Of course, there are times when a judge may be engaging in “state action,” this isn’t one of them. And if he is, then ANY state court ruling in a civil case is reviewable by a federal court. Please.

    Please is right. Of course every final, enforceable state court ruling in a civil case is a state action, just as every statute passed by a legislative body and signed by the applicable executive is. Of course that makes them all reviewable in federal court. That doesn’t mean they’ll go very far – 99% of the time, they won’t – but that’s because state court rulings usually comply with the U.S. Constitution, not because they exempt from complying with it.

    I’m sure you’re also much smarter than all nine Supreme Court Justices put together, so maybe it’s too much to ask them to have produced one single, solitary court ruling rejecting a challenge to any state court ruling on the basis that court rulings are not state actions. Then again, you wrote that opinion yourself while busy clerking for four of them at once?

    While you’re busy looking for your nonexistent authority for your one-quarter-cocked theory of the state action doctrine, be sure to have a peek at this list of examples that would follow from it if only our nation’s judges were as enlightened as you.

    Xrlq (816c74)

  60. Xrlq, how does this argument depend on the act passed by congress?

    James B. Shearer (fc887e)

  61. The act passed by Congress did not create any substantive rights (though they probably could have done so pursuant to Amendment 14, Secs. 1, 5), but did require the federal court to review the federal claims de novo.

    Xrlq (c51d0d)

  62. I’ve never lost a case and I’ve never had to settle a case for on less than favorable terms.

    Really, Perry? Either you’re superhuman — a better lawyer than Clarence Darrow! — or else you have not tried very many cases. Or perhaps you cherry-pick your cases and only take slam-dunks.

    None but choice 1, that you’re the greatest attorney who ever lived, reflects well on you.

    Dafydd

    Dafydd (df2f54)

  63. He’s probably graduated last year. Any veteran attorney knows better than to mistake a good track record of winning vs. losing cases for knowing the substantive law, and if he is going to brag, would talk up his professional accomplishments first, and bring up law school as a minor footnote, if at all.

    Xrlq (c51d0d)

  64. Xlrq, does that mean the federal claims had already been litigated once? What does “de novo” mean here and how is it different from how federal courts ordinarily review federal claims?

    James B. Shearer (fc887e)

  65. Ahem… formerly top 10 school. Hehe.

    The Angry Clam (280c3c)

  66. I think there is no clear and convincing evidence of her being in a PVS, especially after newer ideas creeped into the neurological world with introduction of MCS in 2002, 2 years after Greer’s original order.

    Before this point is taken any further as a “smoking gun,” I just wanted to point out that the introduction of the minimally conscious state (MCS) was not 2002, but predates the 2000 order by several years. MCS patients are a subset of those previously defined as non-PVS, so introducing the category of MCS in and of itself would not raise any PVS patients to non-PVS status. Thus the 2000 ruling was not necessarily in error. MCS was also specifically discussed in the 2002 trial by the same 3 neurologists who classified Terri as PVS.

    Sorry to have taken time away from the issue of the law. More discussion is in the page on the Schiavo Documents.

    Dom Rodavre (872af5)

  67. I posted a reply at Original Documents & Testimony Schiavo that was deleted by operator of this board. Right & Freedom :-)

    Yi-Ling (46b704)

  68. AngryLawyer,

    A minimum amount of process (by the 5th Amendment) includes the indictment/presentation of a grand jury for a capital offense.

    Since there was no indictment, there was no due process.

    Paul Deignan (118279)

  69. James B. Shearer:

    Xlrq, does that mean the federal claims had already been litigated once? What does “de novo” mean here and how is it different from how federal courts ordinarily review federal claims?

    Theoretically, all state and federal issues should have been considerd by the state courts in the original trial. “De novo” means decide the matters anew, as opposed to deferring to past court decisions as long as applicable laws were followed. If an ordinary appellate court concludes that Judge Greer had evidence that a rational trier of fact may deem clear and convincing, they should uphold the ruling even if they personally disagree with the conclusion. But if they are asked to review the issue de novo, it’s not enough to determine that another judge could have found consent by clear and convincing evidence; they also have to make the determination themselves.

    Xrlq (6c76c4)

  70. AngryLawyer,

    You say:

    Micheal Schavio was given guardianship over his wife. The wording of the court’s order notwithstanding, he had a right under FL law to act in her interests. If he had wanted to, he could have reinserted it, and he would not have been held in contempt.

    How so?

    Paul Deignan (118279)

  71. Ahem… formerly top 10 school. Hehe.

    OK, smartass, how ’bout we say then-Top 10 school. My school has indeed slipped a bit over the past couple of years, but it’s ahead of … oh, never mind. The important thing is that my school’s rankings only slipped because they hire deans who rape students, not because of any academic failings. FWIW, I was also accepted to two other schools that are currently among the top ten, although only one of those two was at the time.

    But we’re getting off on a tangent. Jeez, what is it about guys named Angry and law school snobbery? Angry C. may insist he’s not related to Angry L., but I’m unconvinced.

    Xrlq (5ffe06)

  72. AngryLawyer,

    For your reference, here is the order. Please refer to the second to last paragraph.

    ORDERED AND ADJUDGED that absent a stay from the appellate court. the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18, 2005.

    So with police enforcement of this order, I don’t see how you can come to your conclusion that there was no state action.

    Paul Deignan (118279)

  73. Xlrq, so at some earlier stage the federal courts had found that Greer’s decision was reasonable? And it is your contention that the law passed by Congress required the federal courts to reconsider the question with a higher standard of review (whether Greer’s decision was objectively correct)? Which means this higher standard is not constitutionally required in general?

    James B. Shearer (fc887e)

  74. Obviously, I’m too retarted to close my html tag. D’oh!

    tgirsch (7b1deb)

  75. Xlrq, so at some earlier stage the federal courts had found that Greer’s decision was reasonable? And it is your contention that the law passed by Congress required the federal courts to reconsider the question with a higher standard of review (whether Greer’s decision was objectively correct)? Which means this higher standard is not constitutionally required in general?

    Again, I mention that I am not a lawyer; however, my graduate school IS AND WAS in the “top 10″ of graduate schools in the particular area of mathematics that I studied at the time, so there.

    James B. Shearer, bearing in mind that I’m not a lawyer, I’ll try to answer… hoping my writing skills are good enough to translate legalese into English.

    My understanding (from talking to lawyers) is that an appellate court typically does not “retry” the case on appeal. Instead, they only ask the question, “could a rational judge or jury have come to this conclusion, based on the evidence presented?”

    Here is the distinction: suppose, hypothetically, you have a case where one expert medical witness testifies that someone is in a persistent vegetative state, while another expert medical witness testifies that he is not. The judge or jury is perfectly entitled to believe the first guy and not the second, or to believe the second guy and not the first.

    Neither of these is reversible error. Even if the appellate judge actually (secretly, in his heart of hearts) believes the first guy, he’s not going to reverse just because the trial judge believed the second guy.

    (By contrast, if there were an undisputed videotape of the supposedly PVS person talking on the telephone, playing chess, and updating his blog, and if the judge ruled that he was in PVS anyway, saying he believed that the entire videotape was a fake when not a single witness testified to that effect, then I think the appellate court would reverse that! But perhaps XLRQ will correct me….)

    However, in a de novo hearing, it’s my lay understanding that the appellate court would not simply say, “well, I suppose the judge could have believed the other guy, even though I disagree,” and uphold the decision. Instead, if a de novo hearing were ordered at the appellate level for some reason, I think the appellate-court judge would instead actually read the transcript of the testimony of the two doctors and come to his own conclusion which one he believed. He might then issue the opposite decision of the trial judge, just because he disagrees with the first judge’s conclusion.

    At least, that’s what I think all this means. If I’m wrong, I’m sure that perennial-winner Angry Perry will be along shortly to correct me.

    Dafydd

    Dafydd (df2f54)

  76. James, AFAIK the federal courts had not previously ruled on Judge Greer’s case, but it is true that once a court has ruled on a matter, de novo review by any other court is not constitutionally required, nor is it common.

    [X, I believe that a previous request for an injunction had been denied by a different federal district judge. — P]

    Xrlq (e2795d)

  77. Obviously, I’m too retarted to close my html tag. D’oh!

    Or to spell “retarded” correctly. Double-d’oh! (Or would that be cookie d’oh?)

    tgirsch, I think there is some history here; I believe that XLRQ and Angry Perry had some horrific war over precisely this issue on some other (obviously inferior) blog. They’re just carrying their animosity over here… like those two guys on Star Trek, locked in an eternal battle until the end of time.

    (Not the guys whose faces are black on one side and white on the other. It would be ridiculous to cite that episode of Star Trek for anything serious. I mean the other ones on the other episode.)

    Dafydd

    Dafydd (df2f54)

  78. Xrlq:

    [AngryLawyer] You’re joking right? Or are you retarded?

    [Xrlq] No, but I’d have to be to hire anybody who argues like that to represent my interests in court.

    In your first response to him you addressed as “AngryMoron,” completely unprovoked by any name calling, and then you’re going to whine because he calls you a name? Grow up.

    tgirsch (7b1deb)

  79. Dafydd, for a nonlawyer, I must say you do a hell of a job explaining legal principles you supposedly don’t know anything about. Then again, my praise means little since I’m just one of those dummy-lawyers who probably doesn’t know any better. If I’m wrong, surely Angryman will set things straight, assuming he returns to this thread in the future. [My guess is that he was a drive-by troll and we shan’t hear from again, but time will tell.]

    Your extreme examples of reversal based on phone conversations, chess games, etc. are good. Findings of fact can be reversed on appeal, but only under a very exacting “clearly erroneous” standard, which those examples would meet but hardly anything else would.

    Xrlq (6c76c4)

  80. Patterico:

    X, I believe that a previous request for an injunction had been denied by a different federal district judge.

    I’m pretty sure you’re right, but I’m almost as sure that there was no de novo review in that case, nor was there supposed to be. Except on matters of law, of course, which AFAIK are always reviewed de novo.

    Xrlq (6c76c4)

  81. Dafydd:

    I believe that XLRQ [sic] and Angry Perry had some horrific war over precisely this issue on some other (obviously inferior) blog. They’re just carrying their animosity over here…

    Possibly so, but from personal experience, it seems like it doesn’t take very much at all to earn Xrlq‘s animosity. One of my first encounters with him involved him taking me to task for misspelling “Xrlq” (as if that were intuitive, and which, it should be noted, you also did, above).

    tgirsch (7b1deb)

  82. P, so somewhere there is an opinion by another federal judge who you think got it wrong?

    [No. If memory serves, he relied on the Rooker-Feldman doctrine, which the law later passed by Congress stated was inapplicable. — P]

    James B. Shearer (fc887e)

  83. Now I know what some of you are thinking, wasn’t the tube removed upon the order of the court? Not really. The court ordered the removal only because that was what Michael had pettitioned for. The courts were declaring that he had the right to do what he was doing and that what he was doing was not a crime under Florida law. As pointed out in the federal court opinions in this case, 150 years of US precedent is clear that such a declaration is not “state action” for substantive due process purposes.

    Andso Felos made the point of going on TV with Schiavo and saying that even if they wanted, they could not put the tube back in.

    Angrylawyer,

    When you are able to make things up as you go along and appeal to revisionist history to justify your wishes, why bother with reasons at all?

    “’cause that’s how I want it” at least has the virtue of being to the point.

    Paul Deignan (118279)

  84. One of my first encounters with him involved him taking me to task for misspelling “Xrlq” (as if that were intuitive, and which, it should be noted, you also did, above).

    I dunno, tgirsch, he hasn’t bugged me about it. In fact, he didn’t even mention it. (Of course, I’ll try to spell it correctly this time… Xrlq, Xrlq, Xrlq.)

    Of course, with my own name so often misspelt (should I write “mispelt,” just to continue the irony?), I’ve become rather innured to such minor fox paws. (There, see? Spellcheck to the rescue again!)

    I only noted it in your case because of the juicy jest of making a typo in the correction of a previous typo. I swear upon my great-grandaunt’s grave that I have never, while correcting a mistake in galleys, introduced an even worse mistake.

    Of course, I never had a great-grandaunt….

    Dafydd

    Dafydd (df2f54)

  85. P, so are you saying your due process argument above does not apply unless Congress has passed a law declaring the Rooker-Feldman doctrine inapplicable? I don’t see how this can be if there really is a federal constitutional right here.

    [That’s what the doctrine says. . . .]

    James B. Shearer (fc887e)

  86. Just for the record, I did indeed partake in a lengthy discussion on the state action issue, however, it was with Patterico, not with AngryLawyer. Patterico first pointed out the issue on 3/25 and followed up with more the next day. Both entries generated some interesting discussions, then fizzled out. Patterico brought the issue up again on my blog a few days later, resulting in a lengthy discussion that continued for a week, moved to another venue, and kept on going for another week and a half. By the time the discussion was over, which was right around the time Patterico composed this entry, we had covered every conceivable angle on the state action issue. I’d even compiled a list of all the other bizarre court rules that would apply if James Whittemore’s theory had been correct. Then, just when it was finally becoming crystal clear that the state action issue had all the attributes of a dead horse, in comes a hot shot lawyer who insults our intelligence by oh-so-helpfully informing us that there is a state action doctrine.

    Did I expect Angryman to know we’d had that lengthy discussion right off the bat? No. But here’s what I do expect. I expect anybody, particularly a newcomer, to do a little basic research on a blog before attacking everyone involved for supposedly having missed your pet issue just because they’re discussing something else. All he had to do was type the phrase “state actor” or “state action” in the search window, and he’d have found everything that was discussed here, plus links to both discussions from other blogs. Maybe, if AngryLawyer is really half as friggin’ brilliant as he thinks he is, perhaps he would have been able to refute our arguments as well and point out some fancy nuance of state action we had both missed. But he didn’t. In the end, all he had to tell us about the state action doctrine is that there is one.

    Tgirsch: I suspected your memory was wrong but thought it best to consult Google. As I suspected, a full three months elapsed between your first instance of you calling me “Xrlg” and me finally correcting you on it.

    Xrlq (6c76c4)

  87. Xrlq:

    I suspected your memory was wrong but thought it best to consult Google. As I suspected, a full three months elapsed between your first instance of you calling me “Xrlg” and me finally correcting you on it.

    Lookie there, you’re absolutely right on that count. And I must have been in a particularly bad mood that day, because on re-reading I see that your correction was nowhere near as pissy as I had remembered, so apologies all around.

    In my own defense, it’s not my fault SayUncle‘s font sucks. :)

    tgirsch (7b1deb)

  88. P, the Schiavo legislation states it is not creating any substantive rights but aren’t you arguing that it did?

    James B. Shearer (fc887e)

  89. James, my (admittedly sketchy) understanding of the Rooker-Feldman doctrine is that it is jurisdictional, not substantive, in nature. If that is correct, then this issue has nothing to do with Congress creating a substantive constitutional right, and everything to do with Congress giving the federal courts jurisdiction to enforce a constitutional right you had all along, but until now had no court to enforce it in.

    [That is correct. – P]

    [Hey, asshole, I didn’t write that! Nor would I have written it, seeing as you’ve completely buggered up the doctrine. -P]

    [I know. So fisk me. – X]

    [None of the above bracketed crap was actually written by me. It’s Xrlq being a smartass (can you imagine?). Looks like I’ll have to lower his permission level. — The actual P(atterico)]

    Xrlq (c51d0d)

  90. Xrlq, do you mean that the first time you heard of Angry Perry was when he appeared uptopic in this very comments section, lambasting you and the P-man?

    (Then again, perhaps the proprietor would prefer not being referred to as “the P-man.” Consider it changed to the Patterator.)

    What does Xrlq mean, anyway? Maybe if we knew that, it would make it easier to remember.

    Dafydd

    Dafydd (df2f54)

  91. Dafydd: that is correct, although I’m not sure the P-man would be all that keen on comparisons to Arnold Schwarzenegger, whom he opposed at the time of the recall, at least. Maybe he’ll weigh in on where he stands now.

    Xrlq (pronounced “jeff”) doesn’t stand for anything, it’s just my answer to George Bernard Shaw’s ghoti. The common misspelling “Xlrq” would have worked just as well, and people make that mistake all the time, probably because they’re used to seeing the letters XL together, both as “extra large” and as a shorthand for “excel.” So I toyed for a while with the idea of registering the domain xlrq.com as a backup, but when I finally got around to trying, I found out it was already taken by a web design company. For all I know, maybe it was taken all along.

    Patterico: My rectal IQ notwithstanding, typing comments with brackets and italics does not require any specific permission level, only that a commenter not be banned from commenting. Please don’t ban me.

    [I get you — but I may have to ban phony bracketed comments from you.

    Btw, Arnold’s done better than I thought he would. I’m still not a big fan. — The real Patterator.]

    Xrlq (c51d0d)

  92. I take it that everyone here, having read Xrlq’s post is agreed that the execution of Schiavo by judicial fiat was a state action.

    If there is anyine whos is not agreed, please speak up.

    Paul Deignan (d4ad2c)

  93. Paul Deignan, which Xrlq post are you referencing? I am not convinced your statement is accurate. To start with I have problems with the word “execution”. I don’t believe what happened met the legal definition of an execution.

    James B. Shearer (fc887e)

  94. Wow. I didn’t think this discussion would still be going on three days after my little temper tantrum.

    I’d like to respond to some of the criticisms here, but first, I owe Xrlq, and everyone on this board, an apology. Xrlq is right that I shouldn’t have gone off half-cocked without reading through the comments. This issue is emotional, and my desire to post on something without reading up on it was probably driven by my feelings on the matter. My second, insult-laden post was awful and embarrassing. While I think I was provoked into it, I should have cooled off before writing. Oh, and one other thing, Xrlq did NOT go to a top ten school. He went (as I suspected from his second response) to the best law school on earth (as did I).

    Second, Xrlq is quite right that my legal experience has no bearing on my ability to analyze the Schaivo case. FWIW – the reason I have a good track record in litigation is because I represent corporations in products liability cases, which are almost always bogus claims. If any of them have any merit, they’re settled by the client’s in house atty. So I should be winning every time out. I just wanted to point out that my legal services are probably worth more than nothing.

    After looking into this a little more, I’ll admit it’s not as obvious as I first thought, but I still think I’m essentially correct that there’s no DP claim.

    The first thing to keep in mind is that no one really “killed” Terri. She was simply allowed to die. Now, this might seem like a really technical distinction, but under the criminal law, it’s a huge one. Traditional English law (which is the foundation for our law) is clear that there’s no duty to rescue. If you see a drowning kid in a pool somewhere, feel free to laugh at and mock him as he dies. You’re a piece of shit, but you probably haven’t incurred any criminal liablity. Likewise, and there have been several cases on this, including one very important one in CA if I recall correctly, “pulling the plug” on life support is not a crime under the tradtional view of the law.

    Now the citizens of Florida of course are not compelled by the Constitution to change that. But they did, as is their right. What they did was create a procedure whereby the guardian of an incapacitated person could get the life support removed, but only by petitioning a Florida court to agree that this is what the incapciated person would have wanted under the standard of clear and convincing evidence.

    Now, I never said that a court’s order cannot be state action. But it isn’t state action here because the court is simply affirming that the removal of life support is not a crime under Florida law and therefore issues an order removing life support. If that is state action, then almost any state court ruling would be subject to review by a federal court. For example, let’s say that a state landlord tenant court holds that an eviction is lawful and orders the sherrif to evict a tenant. This would now be a “state action” depriving someone of property, and therefore, a tenant would have the right to have a federal court review the proceedings in state court to make sure that they were fair (delaying the eviction for several years). Fortunately, there’s no precedent that I’m aware of that says the constituion requires that.

    And even if you take the position of Xrlq and Patterico that this is somehow state action, then you still have to explain what right is being violated. And here’s where we run into the procedural vs. substantive issue. Terri Schaivo had plenty of “process”, no one is disputing that. What Patterico and Xrlq are arguing, however, is that the court was constitutionally required to apply the “clear and convincing” standard. For this argument, they rely on cases holding that criminal convictions require proof beyond a reasonable doubt. But there’s a key distinction here. In those cases, the states were affirmatively taking away someone’s liberty or, in a few cases, their life.

    So what Xrlq and Patterico are really arguing for is a due process right to not be removed from life support. But Florida didn’t have to have this procedure at all. It could have simply let Micheal Schaivo and the hospice remove the tube and Terri could have passed away and that would be it. You’re right that the courts have, sloppily, seen this as a procedural issue, but I think they’re wrong because if they agreed with you and found a right to a reasonable application of the clear and convincing standard, then every state would be compelled to provide a similar court procedure before someone could be taken off life support. Presumably, every state would have to amend their laws to make removal of a feeding tube a crime. Due Process, even when viewed as elastic as the Warren/Berger courts did, simply doesn’t stretch that far.

    AngryLawyer (94b15e)

  95. James, AngryLawyer,

    Please refer to post #71.

    What about this order do you not accept as an execution order?

    Paul Deignan (d4ad2c)

  96. Oh, just one more thing.

    Some people have pointed out that the order seems to give Micheal Schaivo no alternative but to remove the tube. Since, as I explained above, Florida has already done far more than consitutionally required, I don’t think it matters. But to the extent people care about this, the order, read in its entirety, plainly states that it is “authorizing” (not compelling) Michael Schavio to remove the tube in his capacity as guardian. Note also that Florida’s “Life Prolonging Procedure Act” (and note that the title is consistent with the traditional understanding that we aren’t protecting life but rather prolonging it) empowers a surrogate (here Michael) to make decisions for an incapaciated person without a living will. It does not command that someone be taken off life support pursuant to a court’s findings.

    AngryLawyer (94b15e)

  97. AngryLawyer,

    What about that court order do you not understand to be an order?

    Paul Deignan (d4ad2c)

  98. AngryLawyer,

    What happens to people who violate court orders?

    Paul Deignan (d4ad2c)

  99. I guess what confounds me here is how a very short and clear order can be read as optional.

    Police enforced the order, it limited Schiavo’s options–comply or else (for example no $1,000,000 offer could be accepted), the fact that Schiavo and Felos did not ask for this compulsory order was acknowledged on national media as was the fact that it was “an order”.

    Yet, some cannot seem to grasp that this is what it was.

    So I have to ask, “Why?” So far, it seems to me the answer is, “We do not believe in laws per se, but in our own wishes in this instance.”

    Paul Deignan (d4ad2c)

  100. Now I will deconstruct AngryLawyer:

    Some people have pointed out that the order seems to give Micheal Schaivo no alternative but to remove the tube.

    There seems to be question being created as to who is pointing this out. There should not be. I was very clear. This is the first step towards creating confusion out of clarity.

    Since, as I explained above, Florida has already done far more than consitutionally required, I don’t think it matters.

    Something called “Florida” is claimed to be relevant and supportive of AngryLawyer. Other things don’t matter.

    But to the extent people care about this,

    Angrylawyer has come to this forum for some reason to related to the need to be cared for. He recognizes attention and appreciates it.

    the order, read in its entirety, plainly states that it is “authorizing” (not compelling) Michael Schavio to remove the tube in his capacity as guardian.

    The order says shall not may. Angrylawyer is appealing to a narcissistic delusion of superior knowledge (which he cannot produce from the order itself).

    Note also that Florida’s “Life Prolonging Procedure Act” (and note that the title is consistent with the traditional understanding that we aren’t protecting life but rather prolonging it) empowers a surrogate (here Michael) to make decisions for an incapaciated person without a living will. It does not command that someone be taken off life support pursuant to a court’s findings.

    Here there seems to be some recognition that the order doesn’t square up with the law. Angrylawyer reconciles this difference by denying reality and appealing to an alternate reality that he has created for himself. He has managed to wrap himself in his own confusion which is more comfortable than reality. He seems to think that it is possible to direct others to share his fantasy. What does this say about his conception of others? What is he saying about life?

    What we are dealing with here is a deliberate disconnect from reality. This is common to left-leaning thinkers and explains why they do not learn from experience. More about this at transnational liberalism.

    Finally, note that there is no accountability for AngryLawyer’s delusions. He is free to think and express what he pleases without consequence. This is in part the reason for not giving an e-mail or proper name.

    What can we learn from this? Want sometimes trumps thought.

    Paul Deignan (d4ad2c)

  101. What I’m saying Paul is three fold

    1) the order, read in its entirety, doesn’t say what you claim it says. It “authorizes” Michael to remove the tube, it does not compel him to do so.

    2) to the extent it can be read in the way you suggest, it was probably some sloppy drafting by Judge Greer. No one doubts that Michael Schiavo sincerely wanted cease life support, so it really didn’t matter whether the order said that he had to or that he could if he wanted to. I’ll go back to my landlord tenant example. In some states you have to sue to evict people. If you do and are successful, the court then “orders” the sherrif to throw the tenant out on the street. But everyone knows that the landlord could stop that if he or she had a sudden change of heart. And not only that, it seems that the parties also understood this to be the case because after the first order was issued, someone offered Michael 1 million dollars to sign guardianship over to the Schindlers. That money wouldn’t have done much good if Michael had to remove the tube under penalty of law. I know that Michael’s attorney said otherwise after the tube had been removed, but he was just trying to take heat off of his client.

    3) the applicable Florida statute did not authorize the court to issue an order commanding Michael to remove the tube or be thrown in jail, so Michael could have resisted such an order and would have prevailed on appeal.

    AngryLawyer (94b15e)

  102. AgryLawyer,

    “Shall” — the operative part of the order was as cited.

    That is why the section is labeled “ORDERED AND AJUDGED”. The rest is rationale and reference.

    Again, if you can prove your contention from the order, you should do it in detail.

    Paul Deignan (d4ad2c)

  103. BTW, Angrylawyer,

    Greer did not alter the order once this was called to his attention.

    Why not? Why the police presence if all he meant was “may”?

    Paul Deignan (d4ad2c)

  104. the applicable Florida statute did not authorize the court to issue an order commanding Michael to remove the tube or be thrown in jail, so Michael could have resisted such an order and would have prevailed on appeal.

    Really? That is not how the situation played out. Protestors were imprisoned for trying to do as much.

    We saw what happened with the appeals.

    Paul Deignan (d4ad2c)

  105. Paul,

    I’m quoting directly from the order and it explicitly characterizes itself as “authorizing” the removal of Terri’s feeding tube. It’s right there on page 2. I agree that there’s a disconect between that and the section you’re quoting, but I then point out that there’s good circumstantial reasons to believe that Micheal still had a choice in the matter. The fact that Greer had no power according to Florida law to order the removal of the tube seems to me to be good circumstantial evidence that he meant simply to authorize removal. Oh, and if judge Greer really meant that the tube had to be removed regardless of what Micheal and the hospice wanted, why, then, didn’t he order the cops to do it? Why leave it up to a private litigant? OTOH maybe I am delusional. After all, I don’t even believe that Michael was trying to off Terri before she could regain consiousness and explain that her injuries were really caused by Michael.

    Again, I really do just think this was sloppy drafting by Greer. Oh, and I’m sorry that I didn’t give you full credit for raising this issue, but my “some have pointed out” was not part of some grand scheme to deceive people. Thanks for the psychoanalysis though. I always appreciate it when conservatives confirm my suspicion that their entire worldview is shaped by nothing more than disdain for people who disagree with them.

    AngryLawyer (94b15e)

  106. You’re coming at me too quick Paul. The police were present to protect the hospice’s right against trespass and to prevent violence. The court held that it was Michael’s decision to make, and the protection was necessary to ensure he could make that decision.

    I am interested in your contention that the mandatory nature of the order was pointed out to Greer and he didn’t change it. Do you have a cite/link?

    AngryLawyer (94b15e)

  107. I’m quoting directly from the order and it explicitly characterizes itself as “authorizing” the removal of Terri’s feeding tube.

    Angrylawyer,

    I see no quote other than my own. It states “shall”.

    Paul Deignan (d4ad2c)

  108. Angrylawyer,

    The police were present in the room also to prevent the Schindlers and the priests from giving food and water by mouth. There are also orders to this effect.

    Paul Deignan (d4ad2c)

  109. Angrylawyer,

    Greer wrote the order. There was time to change it if he had wanted.

    Are we to suppose that judges don’t know what orders they are issuing when people are going on national television stating as much?

    Schiavo had a $1,000,000 offer to reliquish custody. How could he have taken this if he was under court order to starve Terri to death?

    Paul Deignan (d4ad2c)

  110. nothing more than disdain for people who disagree with them.

    No disdain, just trying to understand the reason for a disconnect from reality. This is part of learning human nature. Humans are not always logical, but when they are not, it is generally predictible and attributable to other modes of “thinking”. More at my blog on this.

    Paul Deignan (d4ad2c)

  111. It doesn’t matter that the police were in the room to stop the feeding by the Schindlers. That wasn’t part of the order anyway. The police were there to enforce Michael’s right to make this decision. Their presence tells us nothing as to whether Michael could have changed his mind.

    The word “authorizing” is on page 2, paragraph 3. Now I recognize that it was in reference to the origninal order removing the feeding tube, but the order we’re discussing simply reinstates the old one, so I think it’s pretty good evidence that the court understood that it was ordering the removal only to the extent that Micheal, acting as Terri’s guardian, had decided that that is what should happen. Indeed, the caption of the case was “in re guardianship.” This was a challenge to Micheal’s decision making as Terri’s guardian.

    Still waiting on evidence that Greer intended that the tube be removed regardless of Micheal’s decision.

    AngryLawyer (94b15e)

  112. Greer wrote the order. There was time to change it if he had wanted.

    That’s your proof? My point is that everyone understood why the order was being issued and what it was really saying. Courts do this all the time. Greer’s order was, so he thought, ending the matter. I’m sure he was worried about other things than making clear that Micheal could continue to take actions consistent with being Terri’s guardian.

    I read your blog. If you took out “liberal” or “left” and replaced with “Jew,” you’d have a great Nazi polemic. I’m not going to keep debating this with you. I have to get back to work.

    AngryLawyer (94b15e)

  113. Angrylawyer,

    The police were there to enforce Michael’s right to make this decision.

    No, police were there to enforce court orders and laws, not some individual’s wants and desires.

    It would be nice if I could summon the police to do my bidding, but they don’t allow that here in the US as a rule of thumb.

    I encourage enveryone to read my blog and to see if you come up with the same characterizations as Angrylawyer. Note that I rely on empirical evidence.

    This post is the header to the transnational post: connections and consistency and links to the evidence in this post of an information-processing disparity as the cause for a system-wide disconnect from reality among the left.

    BTW, AngryLawyer, I was just guessing that you were on the political left. Thanks for the confirmation.

    Right now you are defending the position that the execution order was a goof. Why?

    Paul Deignan (d4ad2c)

  114. The word “authorizing” is on page 2, paragraph 3. Now I recognize that it was in reference to the origninal order removing the feeding tube, but the order we’re discussing simply reinstates the old one, so I think it’s pretty good evidence that the court understood that it was ordering the removal only to the extent that Micheal, acting as Terri’s guardian, had decided that that is what should happen. Indeed, the caption of the case was “in re guardianship.” This was a challenge to Micheal’s decision making as Terri’s guardian.

    I am pleased that you are beginning to realize your error.

    Nonetheless, the operative portion of the order was compulsory. This was a departure from earlier orders and tripped up others besides yourself.

    Paul Deignan (d4ad2c)

  115. Paul:

    BTW, AngryLawyer, I was just guessing that you were on the political left. Thanks for the confirmation.

    Really? It took you that long to figure it out? I thought he made it pretty clear in comment #57 (his second on this thread) when he said:

    Now, I know that because you’re a conservative you just can’t stand the fact that liberals have been right on this all along. But we have been. Get over it.

    [Emphasis Added.]

    Apparently, either your attention to detail is wanting, or you need more explicit statements than the one given above. :)

    tgirsch (7b1deb)

  116. tgrish–Sorry, I didn’t read that one.

    I’m interested in a very particular point which I am investigating now. During that time, I was arguing the same point with Yi-Ling.

    Paul Deignan (d4ad2c)

  117. By the way, in case it hasn’t been linked before, the order in question is here. As a non-lawyer, I can see both sides of the argument over whether this merely authorizes the removal of the tube or mandates the removal.

    tgirsch (7b1deb)

  118. Again, as in #71 (tgrisch–weren’t you just chastising me for not reading the thread on a point that I wasn’t arguing?):

    ORDERED AND ADJUDGED that absent a stay from the appellate court. the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18, 2005.

    Paul Deignan (d4ad2c)

  119. It looks like this guy’s analysis agrees more with Paul than with AngryLawyer:

    To those who may be surprised by the order’s directive, keep in mind that the directive to remove the tube (as opposed to allowing the husband to do what he wants) is consistent with the notion that the court has determined how Terri would exercise her privacy rights and that she would choose not to continue receiving life-prolonging measures in the form of her feeding tube. Removing the tube is not a decision by the guardian. It is a decision by the court.

    This would also seem to buttress Xrlq’s “state action” argument, if my understanding of it is correct.

    tgirsch (7b1deb)

  120. Paul Deignan, I don’t accept that this qualifies legally as an execution order. It seems the courts agree since if I recall correctly the courts have ruled that incompetent people cannot be executed and Terri Schiavo was clearly incompetent. We are discussing the law, not our personal preferences correct?

    Contra AngryLawyer, Greer’s order does seem to limit Michael Schiavo’s discretion in that he was clearly not allowed to decide on his own to delay removing the tube. This would be consistent with the belief that Terri Schiavo had a right to have the tube removed once it had been established by clear and convincing evidence that this would have been her wish.

    James B. Shearer (fc887e)

  121. Technically, I wasn’t chastizing you. I was picking on you. There’s a difference. That will teach me to try and inject a little levity…

    tgirsch (7b1deb)

  122. James B. Shearer:

    This would be consistent with the belief that Terri Schiavo had a right to have the tube removed once it had been established by clear and convincing evidence that this would have been her wish.

    That is my understanding as well. The court was ordering that Terry Schiavo’s wishes be followed; the desires of the Schindlers or Michael Schiavo would seem to be irrelevant at this point.

    tgirsch (7b1deb)

  123. Paul Deignan, I don’t accept that this qualifies legally as an execution order. It seems the courts agree since if I recall correctly the courts have ruled that incompetent people cannot be executed and Terri Schiavo was clearly incompetent. We are discussing the law, not our personal preferences correct?

    The nature of the execution order is not dependent on who is being executed.

    It is a state sanctioned killing of a human. This could not be more clear.

    Paul Deignan (d4ad2c)

  124. Paul:

    Are you seriously arguing that a state ordering someone to be executing and a state ordering that a person’s wishes not to be kept alive by artificial means be honored are both tantamount to the same thing?

    tgirsch (7b1deb)

  125. Are you seriously arguing that a state ordering someone to be executing and a state ordering that a person’s wishes not to be kept alive by artificial means be honored are both tantamount to the same thing?

    No.

    I am stating that what we have here is case A, not case B.

    And BTW, the “wishes” argument is a fiction. States cannot enforce wishes (even wills are not wishes, they are directives).

    The state can only enforce its own wish (strictly speaking as it is unable to know the wishes of anyone else–wishes are a chageable state on mind).

    Paul Deignan (d4ad2c)

  126. AL:

    The first thing to keep in mind is that no one really “killed” Terri. She was simply allowed to die. Now, this might seem like a really technical distinction, but under the criminal law, it’s a huge one. Traditional English law (which is the foundation for our law) is clear that there’s no duty to rescue. If you see a drowning kid in a pool somewhere, feel free to laugh at and mock him as he dies. You’re a piece of shit, but you probably haven’t incurred any criminal liablity.

    Not for that alone, no. But in addition to having a right not to rescue him, you also have a right to rescue him, and if you round a gang of goons to prevent any would-be good Samaritan from exercising his right, you’ll soon find out you look in pin stripes.

    If [Judge Greer’s ruling] is state action, then almost any state court ruling would be subject to review by a federal court. For example, let’s say that a state landlord tenant court holds that an eviction is lawful and orders the sherrif to evict a tenant. This would now be a “state action” depriving someone of property, and therefore, a tenant would have the right to have a federal court review the proceedings in state court to make sure that they were fair (delaying the eviction for several years).

    Not necessarily. State action alone is not a cause of action, only one of two prongs, the other being a deprivation of a right. In a routine federal court challenge to an eviction order, I’d expect the case to be kicked on the grounds that it makes no substantial case that the deprivation was done without due process of law – not because the court wasn’t a state actor and due process was therefore irrleevant. If an aggrieved tenant can make a substantial case that a state court judge issued his eviction order on account of his race, I have little doubt that a federal court would hear an equal protection challenge. It couldn’t do that if court orders weren’t state actions.

    Fortunately, there’s no precedent that I’m aware of that says the constituion requires that.

    That’s true, but for reasons having nothing to do with the state action doctrine, and everything to do with Congress’s broad powers to strip Article III courts of jurisdiction to hear just about anything.

    And here’s where we run into the procedural vs. substantive issue. Terri Schaivo had plenty of “process”, no one is disputing that. What Patterico and Xrlq are arguing, however, is that the court was constitutionally required to apply the “clear and convincing” standard. For this argument, they rely on cases holding that criminal convictions require proof beyond a reasonable doubt.

    Not entirely; see also the dicta from Cruzan that comes damned close, albeit in dicta, to saying that civil death warrants like this one require clear and convincing evidence.

    But there’s a key distinction here. In those cases, the states were affirmatively taking away someone’s liberty or, in a few cases, their life.

    That distinction won’t wash. The State of Florida acted affirmatively to ensure no one kept Terri Schiavo alive. It killed her in every sense of the word, as much as it will do if/when it finishes off John Evander Couey, and as much as it would do if a court issued an order declaring Fred Goldman the “guardian” of Florida resident O.J. Simpson, and vested the “guardian” with the power to decide if/when it is in O.J.’s best interest to be sequestered and denied food and water until he dies.

    Presumably, every state would have to amend their laws to make removal of a feeding tube a crime.

    Nah, in most cases, there’d either be no court order, or there’d be a court order clarifying that the tube may be removed over the objections of nobody, with nobody being forcibly prevented from “saving” a patient who was beyond hope anyway. In cases like that I think we can all agree there’d be no state action aside from the simple, routine act of a judge adjudicating the rights of the parties – a state action indeed, but one that deprives the rights of no one.

    As to the shall vs. may issue, I think the most you can say is that Judge Greer flouted Florida law, and that the real legal effect of his order was more limited than what Greer himself was trying to accomplish. I don’t think it was a typo, particularly after Michael Schiavo and George “I See Dead People” Felos had made such a huge to-do about the fact that Michael Schiavo had no legal right to let Terri live even if he wanted to. Even if I were inclined to agree with you on the ultimate outcome of the case, this still wouldn’t inspire much confidence in George Greer’s abilities as a judge.

    I read your blog. If you took out “liberal” or “left” and replaced with “Jew,” you’d have a great Nazi polemic.

    Really! Perhaps you’d care to point to the entry where he says all liberals should be sent to the gas chambers?

    Xrlq (6c76c4)

  127. AngryLawyer,

    BTW, the idea to offer money to Schiavo for relinquishing custody got started at my blog: Terri Schiavo Pledge Drive

    On Feb 18, 2005. This predates Greer’s order. Sometime during the drive, the site was hit by a computer in Pinelles CO. government. So, I contend that Greer might well have known that an effort was underway to “ransom” Terri from Schiavo and decided to issue an execution order so as to prevent Schiavo from backing out.

    I believe the Greer is corrupt and may have had a personal interest in the outcome of the case.

    Paul Deignan (d4ad2c)

  128. Paul Deignan, are you arguing that what took place was under current law an execution?

    As for “state sanctioned killing”, how does that differ from “lawful killing”?

    James B. Shearer (fc887e)

  129. Xrlq

    Dammit. You’re right on the order, but not for the reasons you think. I went back and tried to find the original 2000 order with no luck, but I did find the Florida appellate court decision on that order. Apparently, despite the fact that there had been subsequent legislation from the Florida legislature that did not authorize this procedure, Michael Schaivo invoked the court’s inherent power (as had been recognized in eariler life-support termination cases) to act as Terri’s guardian. Thus, the order did in fact command the removal of the feeding tube regardless of Michael’s wishes. That is indeed state action (I still believe, however, that it is not state action to issue an order to enforce the rights of a private litigant, but that’s not this case).

    But you’ve only cleared one of many hurdles. First, you still need to demonstrate why you believe that there is a substantive due process right to be deprived of life support only after certain factual findings that are based on the clear and convincing standard. The dicta in Cruzan doesn’t convince me. For one, the court has soured on expanding DP rights since that case. More importantly, in the language quoted by Patterico, the court was explaining why it thought the C&C standard was reasonable and therefore did not violate the right to refuse medical treatment. But just because the court thinks C&C is appropriate doesn’t mean that it therefore is constitutionally required. Now I’m not convinced the Supreme Court was right to infer a “reasonable doubt” standard from the DP clause. I find Justice Black’s dissent compelling. But the Court was relying on centuries of common law practice to infer that DP meant that criminal convictions (not just death sentences) had to be pursuant to a reasonable doubt standard. Aside from Cruzan, where do you find this due process right to be taken off life support only after a finding under the C&C standard. Do you accept Justice Scalia’s view that the only substantive DP rights should be those that were in existence at the time of the ratification of the 14th A? And what, exactly, must be shown under that standard? That the person is in a persistant vegitative state? That they are in a coma? That they would or even might die if they’re sent home from the hospital? What must be shown about the patient’s wishes – that they definitely would have wanted to be taken off life support? Does this require a written document? If we need a written document, can parol evidence be introduced if there’s ambiguity? The point is simply that this is pure legislation from the bench. And as a conservative, I’d think you’d abhor such an outcome. I’m a liberal, and I think this is too far. And I haven’t even addressed the issue of reviewing the application of the C&C standard. This would effectively give a federal judge veto power over state courts because almost anything can be called an abuse of discretion.

    Finally, even if you can make a principled case for a right to a C&C standard with judicial review of how it was applied, you still would have to explain why you think the plaintiffs could have shown a likelihood of sucess on the merits of such a claim. Judge Greer’s initial fact finding was based on his determination that the Schindlers’ witnesses were not credible, and that Michaels were. He did so not just based on his apparently mistaken belief that one of them referenced a movie that had not yet been made but also because she, and other witnesses, contradicted their deposition testimony at trial. That seems legit to me, even under C&C. So I still think the fed courts did the right thing here.

    Finally, I agree with Patterico that ordinarily a denial of cert tells us nothing about a case. But in these circumstances, where there are questions of life and death and the case is so high profile, if the Supreme Court agreed with you, don’t ya think they would’ve stepped in here?

    As far as my spat with Paul – go take a look at that post he linked to in his “deconstruction” of me. Essentially, he seems to be claiming that all liberals are somehow inherently and immutably flawed psychologically. Ask yourself, is this someone I really want to be defending?

    AngryLawyer (94b15e)

  130. James,

    I am observing that Terri was executed by the government.

    Not all executions are lawful. This one was not according to the 5th Amendment (the lone ennumerated condition under which the US government may take the life of a person of the US).

    It is enought to know that this execution was unconstitutional. As to “state sanction killing, etc. — not relevant to me here (maybe a topic of future discussion once we can agree on the fundamentals of this particular instance).

    Paul Deignan (232361)

  131. As far as my spat with Paul – go take a look at that post he linked to in his “deconstruction” of me. Essentially, he seems to be claiming that all liberals are somehow inherently and immutably flawed psychologically. Ask yourself, is this someone I really want to be defending?

    AL,

    Not all liberals — but this is a characteristic of the dysfunction. I am concluding (based on the results of the study) that the liberal movement “feels” rather than “thinks” IAW the MB information-processing model. This leads to a political movement that plays interior games.

    It explains the polarization in the electorate and many many other interesting political phenomena. There is nothing inherently wrong with “feeling”, but a political party that is “feeling” to the exclusion of “thinking” is unbalanced. Alternatively, a political system that lacks an underpinning of “feeling” can be ideologically unstable.

    This is not a matter of “bad” and “good” as I made clear in the TNL post. It is a matter of function and dysfunction.

    I am please that you were able to correct. This is a good time for introspection and analysis.

    Paul Deignan (232361)

  132. You’re still confusing substantive with procedural due process. The substantive due process argument would be that states can’t order people starved to death no matter how convincing the evidence is. The Schindlers may have made this argument in the alternative (see Count 10), but Patterico and I have not, and I for one would not. I support right to die, even by physician assisted suicide, if it is crystal clear that this is what the patient really wants. What I do not support is a judge jumping the the conclusion that this is indeed what a patient wants, when in fact the underlying evidence is rather shaky. That’s a procedural due process argument, not a substantive one.

    The question, then, is not whether or not a state can kill a patient without due process, but rather, what “due process” means in this context. Patterico argues, persuasively IMO, that it requires clear and convincing evidence. Suppose he’s wrong, however; it still has to mean something, and I’d be hard pressed to think of any situations where “due process” can be met with less than a preponderance of evidence. Three affidavits from three guys named Schiavo would barely meet that standard if left unrebutted. Having been rebutted, not just by her best friend (whose fatal mistake had nothing to do with any movies, but rather, involved correctly stating that Karen Ann Quinlan was alive in 1982 while Judge Greer “knew” she had died years before), but her entire immediate family, two treating nurses, an assistant, and just about everyone else who knew Terri and wasn’t named Schiavo. Even if the due process standard was met by a preponderance of evidence, there is a substantial chance that Judge Whittemore, upon de novo review, would have concluded that even that standard had not been met.

    And what, exactly, must be shown under that standard? That the person is in a persistant vegitative state? That they are in a coma? That they would or even might die if they’re sent home from the hospital? What must be shown about the patient’s wishes – that they definitely would have wanted to be taken off life support? Does this require a written document? If we need a written document, can parol evidence be introduced if there’s ambiguity? The point is simply that this is pure legislation from the bench. And as a conservative, I’d think you’d abhor such an outcome. I’m a liberal, and I think this is too far.

    I’m calling bullshit on that one. If you’re a judicial liberal (and no other kind is relevant to this discussion), you presumably support the Abortion Amendment, the Sodomy Amendment, the No Executing Minors Amendment, the allegedly forthcoming Gay Marriage Amendment, and a host of other court cases finding “constitutional” requirements having no basis whatsoever in the written Constitution. Unless you oppose them all, you’re in no position to argue that it’s going too far to rule that the Due Process Clause actually means something, and then to attempt to determine what that is rather than judicially nullify it.

    As far as my spat with Paul – go take a look at that post he linked to in his “deconstruction” of me. Essentially, he seems to be claiming that all liberals are somehow inherently and immutably flawed psychologically. Ask yourself, is this someone I really want to be defending?

    Against reckless charges to Hitler and the Nazis? Absolutely.

    Xrlq (6c76c4)

  133. reckless charges = reckless comparisons

    Xrlq (6c76c4)

  134. Paul Deignan, ok it is your opinion that Terri Schiavo was unlawfully executed by the government. Apparently you believe that you are the final authority on this. I don’t agree but I don’t see much point in continuing to argue about it.

    James B. Shearer (fc887e)

  135. Comment by Xrlq — 4/22/2005 @ 7:15 am [ Post 90]

    below is not accurate as I tried reposting the same reply that was posted and deleted on Original Documents board Schiavo and it was again not allowed for posting. Maybe you or Patterico can give me the reason why the reply inter alia on “5 elements of Section 765.101 (12) Florida Statutes, on the basis of clear and convincing evidence for each of the 5 elements.” is not allowed, while I see great latitude in posts here and elsewhere. :-)

    Patterico: My rectal IQ notwithstanding, typing comments with brackets and italics does not require any specific permission level, only that a commenter not be banned from commenting. Please don’t ban me.

    Yi-Ling (d855d6)

  136. I’m calling bullshit on that one. If you’re a judicial liberal (and no other kind is relevant to this discussion), you presumably support the Abortion Amendment, the Sodomy Amendment, the No Executing Minors Amendment, the allegedly forthcoming Gay Marriage Amendment, and a host of other court cases finding “constitutional” requirements having no basis whatsoever in the written Constitution. Unless you oppose them all, you’re in no position to argue that it’s going too far to rule that the Due Process Clause actually means something, and then to attempt to determine what that is rather than judicially nullify it.

    Two wrongs do not make one right. Its funny that one of the key arguments used is that if they use DP for these purposes whey can’t DP be used for this Terri’s case when it really matters. I do not think DP should be used here as state law is sufficient as it spells out the standard and the procedure. Xrlq, you never answered the sufficiency of the state law, state standard, and why the need then to fall back again on the extra layer of transparency of the same picture, on federal standard. While you rightly say, “good faith” standard is another issue, it could one day, too, be an issue, as a challenge to Fla. Stat. that there is also the DP to contend with, and you cannot just use, “good faith”. But then again, you might say, that is defence to suit where no way the defendant would be deprived of life, and that’s okay, DP need not come in. If so, then you could encounter arguments that since finding of fact of in a PVS was explicitly silent as to standard, that, it should use the same standard as in defence of decision, which is “good faith” standard. In which case, it would rise to a constitutional challenge of Fla. Stat, or counsel’s interpretation of it. Yet you say there is no constitutional challenge to Fla. Stat, or maybe you should say, as yet, it has not been raised but it could have been raised, the “good faith” standard on finding of in a PVS.

    Yi-Ling (d855d6)

  137. James,

    I believe that a nation of the people requires a common constitution understandable to all the people. Therefore, I have full standing to read this Constitution of ours (as do we all) and to bring to your attention the 5th Amendment, 9th Amendment and Preamble in the plain meaning of the text.

    Yes, it is my opinion based on this reading that Terri Schiavo was unlawfully executed by the government.

    What else did you expect? Logic is consistent and unforgiving. There is no other option for the person with intellectual integrity based on the information available here.

    Paul Deignan (df046a)

  138. In reading Xrlq’s insight on jurisdiction, here is another:

    The judiciary is not an independent branch of government–it functionally proceeds from consensus between the executive and legislative branches (the trinity as a model for government–clever of those founders).

    Paul Deignan (df046a)

  139. Paul Deignan, ok in your opinion, not only are you the court of last resort, anyone who disagrees with your rulings lacks intellectual integrity. Not a view with wide appeal I suspect.

    James B. Shearer (fc887e)

  140. Paul Deignan, ok in your opinion, not only are you the court of last resort, anyone who disagrees with your rulings lacks intellectual integrity. Not a view with wide appeal I suspect.

    Paul was arguing with me on the Original Schiavo documents board and after seeing his bio and his thesis on his linked site and his arguments, I realised that, this is a rite of passage, that we fall prey to arguing from high stand points of absolute principles, and then as years catch up on us and our experiences widen and deepen, we relax a bit on absolute principles with no compromise on intellectual integrity, for most times, intellectual integrity requires compromises. Further absolute principles only work in iron clad containers and once outside the container, the iron clad arguments that proceed on iron clad absolute principles bother on the brink of un-intelligence of irrational thoughts/principles.

    However, he does graciously concede when a compelling argument persuades him and he then adjusts his arguments accordingly.

    Yi-Ling (a44e21)

  141. intellectual integrity + years + exposure = integrated intellectual integrity

    Yi-Ling (a44e21)

  142. Yi-Ling, I’m not sure what your point is. Mine is simple: states should not be allowed to kill people without (1) proof beyond a reasonable doubt that they’ve murdered someone in cold blood, or (2) clear and convincing evidence that they want to die. That a given state purports to require that standard is not enough; the standard has to actually be met.

    Xrlq (c51d0d)

  143. Do you accept Justice Scalia’s view that the only substantive DP rights should be those that were in existence at the time of the ratification of the 14th A?

    Angry Lawyer, I know this is a bit of a side issue, but… when did Antonin Scalia ever write that? What is your source? Can you quote it?

    You claim that Scalia says there is no substantive due process right, for example, to any of the rights “incorporated” to apply to the states as well as Congress? Or that, following the Court decision in Griswold, there is no substantive DP right to contraception?

    I don’t recall ever reading that; perhaps you can illuminate me.

    Are you certain you’re not allowing your ideology to run away with your skepticism?

    Dafydd

    Dafydd (df2f54)

  144. Blogworthies LXIII
    Blogworthies: A weekly round-up of noteworthy entries from a variety of weblogs on a variety of topics.

    The Blog from the Core (d13dcd)

  145. James,

    The point is that the whole electorate that appoves laws and forms the democracy must be able to interpret for itself those laws–it is our democratic responsibility.

    So I assert no more standing for myself than any other.

    Yi-Ling,

    Ha Ha Ha, how many years of experience do you think I have? I am probably older and more world-worn than you might guess. Nonetheless, I would accept the very same arguments from my son and not question his framework, only his logic and facts.

    My arguments are not absolute, they are realistic and consistent in the wide context of this democratic system of ours and in this particular case. I could give counter examples to the contrary arguments to demonstrate their inability to apply to this wider context at the risk of taking us further afield,

    Paul Deignan (b606ca)

  146. James, Yi-Ling,

    I have to add, did you realize just now that we are taliking about me (one of my favorite subjects) and not the arguments at hand? I could start a topic over at my blog for this purpose if you are really interested, but it doesn’t seem like a good topic for this thread and this cite (I’m really not that newsworthy).

    Paul Deignan (b606ca)

  147. Paul Deignan,

    I have to add, did you realize just now that we are taliking about me (one of my favorite subjects) and not the arguments at hand? I could start a topic over at my blog for this purpose if you are really interested, but it doesn’t seem like a good topic for this thread and this cite (I’m really not that newsworthy).

    You caught me by surprise, cos’ I was expecting to be chastised for that. Anyway to satiate your appetite for the issues at hand, next coming is some 8 pointers and more :-)

    Yi-Ling (f92463)

  148. Yi-Ling, I’m not sure what your point is. Mine is simple: states should not be allowed to kill people without (1) proof beyond a reasonable doubt that they’ve murdered someone in cold blood, or (2) clear and convincing evidence that they want to die. That a given state purports to require that standard is not enough; the standard has to actually be met.

    Let’s see where we differ :-)

    1. The findings of fact on Terri’s wish is correct. Reasons are as I have given on Original Schiavo documents board and as Angry Lawyer has amplified above.
    2. The findings of fact on Terri’s PVS, is to me, in doubt. Reasons are as I have given, on Original Schiavo documents board, and further in reply to Dom….’s Post No. xx and xx which reply has been deleted. Reason thereof deletion, I would like Patterico / you to explain.
    3. Fla. Stat. has adequate provisions in Chapter 765 Advanced Health Care Directives, to deal with Terri’s situation. It has set standard of proof. It has set procedure.
    4. Fla. Courts just have to apply the Fla. Stat. to the facts of the case and make a decision. That is Due Process. { No heightened understanding of Due Process  )
    5. No recourse needs to be had to federal constitution on this. No recourse needs to be had on federal review. Exception is because of Terri’s Law II passed by Congress. It is a one off situation.
    6. Fla. Courts have to apply the law to the case at hand. In everything in life, there can be no consensus, and as an example- not all agree with high court’s decision on Bush & Gore. I do not agree with the clear and convincing evidence of her being in a PVS. However I am keen to be shown that she was really in a PVS according to Fla. Stat. Section 765.101 (12), whether by the clear and convincing evidence standard or even the good faith standard. It is enough to criticize the Fla. Courts for finding she is in a PVS, based on reasoned analysis.
    7. No one would suggest convening another purported judicial forum to review the high court’s decision on Bush & Gore, if they are unhappy with it. That there is no such judicial forum above the nation’s high court, is besides the point, save to illustrate that, there will be unhappiness about the judicial decision, where the court has purported to apply the standard to the facts.
    8. I do not think anyone would suggest that the state standard of clear and convincing standard is a different standard from the federal standard of clear and convincing. Yet it appears otherwise, as there is expressed a need for the knight in shining armor, the federal courts to rush in with the arsenal of federal standard of “clear and convincing”. Why not just measure whether the facts do meet the state standard of “clear and convincing”, than dabble with there is also the federal standard of “clear and convincing” and if you clear the state standard, that is not enough, you also have to clear the federal standard. If I could innocently ask, if the federal courts have to come in via Terri’s Law II as the sole exception, why can’t they just look at the state standard of “clear and convincing” and determine if the facts rise to “clear and convincing”. If you disagree, just explain, okay; and if it is persuasive, I might agree with you. :-)

    Mine is simple: states should not be allowed to kill people without (1) proof beyond a reasonable doubt that they’ve murdered someone in cold blood,

    Okay I am in agreement with this. But this presupposes we are dealing with humans who are on the move, who can pull the trigger, pull a few good punches or set the building on fire, whether under intoxication of alcohol or drugs. We are not dealing with this special category of persons who are in comatose, who are in a PVS, where they are not about to do any of the above. We are dealing with advances of science and technology that ratifiers of 14th Amendment would not have dreamt of. We are dealing with expensive application of technology that can prolong patients’ lifes. We are thus dealing with a new situation, not imagined a century ago. Who gets to decide what is the law and morality of it? You think it is the federal courts and one version of interpretation of DP clause. I think it is the 50 states’ legislatures. As long as you do not admit this point, you run foul of American Legal Realism, where facts matter. Further by the legal kit of ratio decidendi and obiter, etcetra, the common law system’s mechanic’s tool kit, any counsel worth his salt, can conceptualise , create and/or device legal arguments, constitutional arguments on both sides of the fence, on both sides of the issue. To let the few judges decide the issue based on such common law means of conceptualization of the principles on and for both sides of the fence, is courting danger. It is safer to leave the conceptualization to the legislatures for after all they are elected for this very purpose…. to think for us as we feedback our ideas to them.

    or (2) clear and convincing evidence that they want to die. That a given state purports to require that standard is not enough; the standard has to actually be met.

    If you put my baggage of thoughts expressed above and then come to (2), you would step back and not see the similarity of the “state” here and “state” there. On the surface they are both ‘states’ for arguments sake, but the similarity ends there, is my jurisprudential, socio-economic, political and legal point. On the surface they are both persons, the defendant in a criminal court and the patient in a PVS, but the similarity ends there.
    The person [ not Greer here, by a hypothetical proxy] who has to defend his decision as proxy to remove the feeding tube, if sued for making the wrong decision has to show that he acted in good faith. Would good faith ever be the defence for a defendant who pulled the trigger? Why is it when he makes the decision, he has to show clear and convincing evidence and then when he defends his decision, he just has to show good faith. What was on the Fla. legislature’s mind? Or did they mean as some one has argued, that in the making of the decision, the proxy has to show he acted in good faith and he is not required to show there is clear and convincing evidence of the patient in a PVS.

    Yi-Ling (f92463)

  149. Yi-Ling et al.

    Here is an appropriate venue for such advice: Words of advice to Paul

    Let’s not pollute this thread with this, OK?

    Paul Deignan (b606ca)

  150. 1. “Wishes” are a fiction. It is not possible to determine the wishes of anyone except that person themself at the time of the conception of the wish.

    2. The state of our technology and as this science was applied to the case leaves doubt as to the mental capacity of Terri. No decision can properly be based on an analysis that explicitly forbid the use of state of the art diagnostics.

    3. “Clear and convincing” should be replaced with “Beyond a reasonable doubt” as this is equivalent to a capital case. Feeding and hydration cannot be prohibited as we do this for all infants. However, the feeding and hydration may or may not be forced. Surgery may be prohibited by the patient.

    4. The due process requires more than going through the motions–it requires a GAL as a minimum. The court may not act as GAL. Other protections provided to incapacitated persons were not safeguarded by the court including allowing conflicts of interest. I do not consider his due process.

    5. The federal constitution directly applies as written. Preamble, 5th and 9th amendments are all applicable.

    6. Punt

    7. Punt

    8. I refer to #3

    Paul Deignan (b606ca)

  151. My arguments are not absolute, they are realistic and consistent in the wide context of this democratic system of ours and in this particular case.

    Here’s a teaser for your analytical mind, Paul :-)

    I assume you know MCS and PVS and the purported difference [ or something about it] between them after the discussion on Schiavo Original Documents board, and now linking you to the pertinent Fla. Stat. statutory and thus legal and thus the ONLY applicable legal definition of PVS at Section 765.101 (12)

    “Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:

    (a) The absence of voluntary action or cognitive behavior of any kind.

    (b) An inability to communicate or interact purposefully with the environment.

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC101.HTM&Title=->2004->Ch0765->Section%20101#0765.101

    can I now take the pH paper and apply the litmus [ not lemon] test and ask what you would think of which /what would come within PVS per Fla. Stat. from this broad spectrum ranging from abled, to significantly disabled to MCS, to PVS, with grey area from MCS to PVS, as persistent vegetative state with infrequent utterances of words which suggest context specific situations, to persistent vegetative state with infrequent utterances of words which suggest no context specific situations, to persistent vegetative state with infrequent utterances of words which suggest both context specific situations and no context specific situations.

    Somewhere along this rainbow spectrum, Paul, it is said, suggested, thought, believed that law, state laws, case laws interpreting state laws, decide where the cut off point is for “removing of life prolonging measures”.

    (i) Is it MCS [whatever that means] , that carries the axe?
    (ii) Or it further down the line requiring PVS, as persistent vegetative state with infrequent utterances of words which suggest both context specific situations and no context specific situations, that carries the axe?
    (iii) Or it even further down the line requiring PVS, persistent vegetative state with infrequent utterances of words which suggest no context specific situations that carries the axe?
    (iv) Or is it even further down the line requiring PVS, persistent vegetative state with infrequent utterances of words which suggest context specific situations that carries the axe?

    Paul, how about sharing your analysis and views with us? :-)

    It falls at

    (a) (i) and (ii) and (iii) and (iv) ? or
    (b) (ii) and (iii) and (iv) ? or
    (c) (iii) and (iv) ? or
    (d) (iv) only ?

    Yi-Ling (f92463)

  152. No decision can properly be based on an analysis that explicitly forbid the use of state of the art diagnostics.

    Oh dear Paul, you did not buy the powerful and strong presentation by Dom, where thereafter my replies are “deleted” or “swallowed up”
    What a waste :-)
    BTW I think Dom’s replies are there to persuade you that she is in a PVS based on c&c evi. And you didn’t buy it hook and line, grrr… :-)

    Yi-Ling (f92463)

  153. Yi-Ling,

    Following your discussion later in the post, please let me clarify that I think the state should not involve itself closely with the individual’s end-of-life decisions. The state may provide some support for life and is not obligated to spend more than what it can afford or has promised. Beyond protecting a certain level of existence, the state has no interest and should divest itself.

    That means a person who was as incapacitated as Terri should have had some minimal aid from the state, but otherwise placed in the custody of the closest relatives that would agree to provide such aid. The state would then monitor to ensure that she was cared for according to these guidelines.

    What if no relative was willing to take care of Terri according to these minimal standards? What if no one in the wider society could be found? In that case, we need to adjust our standards to conform to the reality of the situation.

    The directive from the patient may reduce a standard of care down to the minimal standard, but may not be a directive for assisted suicide.

    Paul Deignan (b606ca)

  154. The applicable legal definition of PVS at Section 765.101 (12)

    “Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:

    (a) The absence of voluntary action or cognitive behavior of any kind.

    (b) An inability to communicate or interact purposefully with the environment.

    Paul, while we are on this Section 765.101 (12) , I happen to think that it is read like this [below] and anyone is welcome to critique my reading of Section 765.101 (12) Fla. Stat. – five (5) elements that are to be proven [ issues of standard of proof aside] for a case of PVS :-

    • (a) a permanent and irreversible condition of unconsciousness; AND
    • (b) there is absence of voluntary action; AND
    • (c) there is absence of cognitive behavior of any kind; AND
    • (d) an inability to communicate purposefully with the environment; AND LASTLY,
    • (e) an inability to interact purposefully with the environment.

    I contend these 5 elements are read conjunctively than disjunctively.
    That is there must be ALL of these 5 elements.

    That means if any one element is not present, it is not a PVS case.

    Yi-Ling (f92463)

  155. Yi-Ling,

    On the matter of PVS, MCS, etc, I really see all of this as irrelevant except to allow a proceeding in court to determine custody and care without the person themself in court to express their wishes. So, beyond the standard competency hearing, I think this is a expedititon of the state into the sovereign terriroty of the individual–trying to objectify the electorate.

    The only other standard that I see as being applicable is “brain-dead” or not “brain-dead”. This can be determined definitively I understand.

    Paul Deignan (b606ca)

  156. The directive from the patient may reduce a standard of care down to the minimal standard, but may not be a directive for assisted suicide.

    Urrhhh, I am in your maze :-) Okay a simple question to get out of your maze:

    If proxy / guardian has no money to engage nurse [ because budget for full time nurse would be almost 3/4 earnings] and no time to take personally care of patient, [ as realistically proxy has a 9-5 job and also a social life] can proxy decide to remove life prolonging measures, even if proxy knows patient would want to live under such circumstances?

    Yi-Ling (f92463)

  157. In regards to legal realism:

    It appears to me that the Schiavo case is the first of its kind where a court directed the execution of an individual in a civil proceeding.

    So I do not see the conflict with my assertion and what you take as a realist interpretation of state court actions.

    The “beyond a reasonable doubt” standard applies here expressly for the special circumstance of Greer’s overreach.

    Paul Deignan (b606ca)

  158. If proxy / guardian has no money to engage nurse [ because budget for full time nurse would be almost 3/4 earnings] and no time to take personally care of patient, [ as realistically proxy has a 9-5 job and also a social life] can proxy decide to remove life prolonging measures, even if proxy knows patient would want to live under such circumstances?

    Yes, if this is in compliance with the minimal standard for care.

    If they cannot afford the minimal standard of care, then they are under no obligation to provide any assistance and the burden of care passes to the next party that the state determines is willing and able.

    Paul Deignan (b606ca)

  159. The only other standard that I see as being applicable is “brain-dead” or not “brain-dead”.

    I might let your boy get off with this, but not you. I hold you to answer further :

    As I understand it, there is this fMRI [“f” stands for “functional”] which can detect brain waves and pattern of a patient in MCS, when people close to the patient speak to him. So this MCS patient has pattern of brain wave like normal persons, but cannot speak, except time to time utterances that people are not sure whether that is context specific or not or a mix of both.

    So by your guideline, is that brain dead?
    P/S: Hint: Dom will say that this PVS :-)

    Yi-Ling (f92463)

  160. If they cannot afford the minimal standard of care, then they are under no obligation to provide any assistance and the burden of care passes to the next party that the state determines is willing and able.

    Passing the baton theory, from 1 family/relative to another till the last one says, I also cannot afford, and then, the last person gets to “kill” the patient [ intentionally remove feeding tube knowing that would result in death in 2 weeks or less], and that makes it okay?

    Yi-Ling (f92463)

  161. The “beyond a reasonable doubt” standard applies here expressly for the special circumstance of Greer’s overreach.

    Shhh, don’t let Xrlq see this “beyond a reasonable doubt” standard, cos’ I tried it earlier and did not get far with him, and I had to back track to c&c evi sheepishly :-)

    Yi-Ling (f92463)

  162. Every time I tell myself that I should stop posting on this stuff, I get sucked back in. I think it’s fun to discuss these issues. But I really shouldn’t be spending so much time with this considering my other obligations, so this will be my last post.

    I’ll start with the easy one. Dafydd – Yes, Justice Scalia has said that many times in opinions. I can’t recall a specific example off the top of my head, but that has always been his philosophy. Hopefully, some of the conservative lawyers on this thread will vouch for me on this one.

    Xrlq – I think we’re just going to have to agree to disagree on the substantive DP v. procedural DP issue. As the Supreme Court explained in Matthews v. Eldridge, procedural due process involves whether someone has had notice and an adequate opportunity to defend. However, when the Court holds that the constitution mandates certain outcomes of that process, then it is plainly creating new, substantive consitutional rights. And the application of one particular evidentiary standard over another is oftentimes outcome determinative. Consider Jackson v. Virginia (discussed by Patterico above). In that case, the court referred to the issue of what standard to apply as “distinct” from the issues of whether the procedures were adequate and characterized the right to the reasonable doubt standard as a “fundamental [] substantive constitutional standard.” (emphasis mine).

    And the distinction is important because if you view the issue as one of substantive DP, then you have to admit that you’re inventing rights. In my last post, I pointed out (or tried to) that your “right to have the state mandate that life support continue indefinitely if there is a dispute about your care between certain unidentified individuals absent a finding that certain undefined criteria are establihed by clear and convincing evidence” has two problems: 1) defining the contours of that right and 2) finding a principled basis for why this right should be recognized and not others (such as, say, the right to free healthcare). In response, you said I was being hypocritical because, presumably, I support at least some of the court’s substantive DP jurisprudence. At the outset, I should say that I’m not sure I’m a “judicial liberal” as you define it. If I were deciding Roe v. Wade in the first instance, I might well have come out the other way. And putting that aside, just because someone recognizes the existance of some fundamental rights does not mean that they must recognize every proposed fundamental right.

    Nevertheless, I’m glad you brought up those cases, because they highlight what’s wrong with the fundamental right that you and Patterico are proposing. The “Abortion Amendment, the Sodomy Amendment, [and] the allegedly forthcoming Gay Marriage Amendment” as you term them, all spring from the same inferred substantive DP right – the right of privacy inferred from other rights in the Constitution (the “no execution of minors amendment” is irrelevant because that is an 8th A case and has nothing to do with DP rights). In other words, the court has held that inherent in freedom is a sphere in which we can make our own decisions regarding sexual practices, reproductive decisions, and familial relations. It is a libertarian principle inferred from the text of the Constitution. What principle do you have to support your proposed right?

    And then there’s the contours of that right. In each example above, the courts can simply say to the state – stay out of it. Don’t regulate abortion in the first trimester. Don’t tell people they cannot buy contraceptives. Don’t tell people who they cannot marry. OTOH, you are inferring what is, essentially, a postive right against the government. And using your definition of state action, the government will be forced to halt the cessation of life support certain circumstances, which are …? Some people on this thread have said that Terri was executed, so why not the reasonable doubt standard? If someone is unconscious but could possibly recover, but there’s C&C that he would have wanted to die in such circumstances, is that consitutionally ok? And why should judges get to decide such questions? I don’t think it’s enough to yell “hypocrite” and then not address why you favor inventing a constitutional right that is not suggested in the text of the Constitution or would have been intended by the framers. At the very least, you should admit that you’re asking for an extention of the law, not a straightforward application of it.

    AngryLawyer (94b15e)

  163. Yi-Ling,

    It turns out that brain death is not as clear cut as I thought. Here is one reference: Brain Death

    Nonetheless, provided an agreed medical diagnostic procedure with legal review by a jury at the request of a next of kin, this seems sufficient to determine death.

    Paul Deignan (b606ca)

  164. Passing the baton theory, from 1 family/relative to another till the last one says, I also cannot afford, and then, the last person gets to “kill” the patient [ intentionally remove feeding tube knowing that would result in death in 2 weeks or less], and that makes it okay?

    Yes, because at that point our society has effectively lowered the minimal standard. This can be understood as a test of that standard.

    Paul Deignan (b606ca)

  165. me: Passing the baton theory, from 1 family/relative to another till the last one says, I also cannot afford, and then, the last person gets to “kill” the patient [ intentionally remove feeding tube knowing that would result in death in 2 weeks or less], and that makes it okay?

    you: Yes, because at that point our society has effectively lowered the minimal standard. This can be understood as a test of that standard.

    So Paul, is your answer the same, if we know by c&c evi. that this patient HAD wanted to live under such circumstances? To satisfy you, let’s pretend he left a living will that he clearly wants life prolonging measures whatever the cost as it is his constitutional right to life.

    Remember if you say your answer is the same, you are disregarding his expressed written wishes and his alleged assertion of his right to life :-)

    Yi-Ling (f92463)

  166. Nonetheless, provided an agreed medical diagnostic procedure with legal review by a jury at the request of a next of kin, this seems sufficient to determine death.

    Oh dear your demands would be a constitutional challenge to Fla. Stat. that did not make room for jury trial of this issue. Xrlq says there is no constitutional challenge to the Fla. Stat. Cap. 765. It looks like the new constitutional challenges are coming out bit by bit.

    So the federal court should get to decide what’s the best way to go about this new area than the states’ legislatures? Hmmmm.. :-)

    [Yi-Ling: try posting your comment from yesterday again — ONCE. I deleted it because you posted it so many times. I meant to leave one but apparently didn’t.

    ALL: If you have a long post with a bunch of links, it will go into moderation. Post it only once. — Patterico]

    Yi-Ling (f92463)

  167. So Paul, is your answer the same, if we know by c&c evi. that this patient HAD wanted to live under such circumstances? To satisfy you, let’s pretend he left a living will that he clearly wants life prolonging measures whatever the cost as it is his constitutional right to life.

    That would be a neat trick. He is free to empty his estate. No one is free to empty the estate of everyone else.

    Paul Deignan (b606ca)

  168. Me: So Paul, is your answer the same, if we know by c&c evi. that this patient HAD wanted to live under such circumstances? To satisfy you, let’s pretend he left a living will that he clearly wants life prolonging measures whatever the cost as it is his constitutional right to life.

    You: That would be a neat trick. He is free to empty his estate. No one is free to empty the estate of everyone else.

    No trick, Paul, you are making history in proposing legislative changes to Fla. Stat.

    Original: “a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0765/SEC401.HTM&Title=->2004->Ch0765->Section%20401#0765.401

    Paul’s Proposed Amendment : “a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent, PROVIDED ALWAYS THAT if the funds of the patient are insufficient to maintain the cost of the life prolonging procedures as well as all incidental costs thereto, including but not limited to cost of staying at hospices or hospitals, medical cost and cost of nursing care in hospice/hospital or home, THEN IN SUCH EVENT, the decision of the patient is rendered irrelevant once it is determined that the family or relatives of the patient are unable to pay for the patient’s cost of staying at hospices or hospitals, medical cost and cost of nursing care at the hospice/hospital or home”

    Yi-Ling (4d35b3)

  169. Yi-Ling,

    Include with that last part, “and the rest of society” and also “above and beyond that promised by the state as generic to all citizens”.

    Of course, this would just be codifying the reality and importance in establishing a minimal standard guaranteed by the state. It would also add to the state the burden of being a clearinghouse for care of the indigent above and beyond the state minimal standard of care.

    Paul Deignan (b606ca)

  170. Yi-Ling, I agree of course on proof beyond a reasonable doubt. It’s fine to argue that that should be the standard, as he did in an earlier comment, but it’s more than a stretch to argue that it is, as he seemed to be arguing in the later one.

    AngryLawyer, I don’t any reasonable room to “agree to disagree” on substantive vs. procedural due process. Requiring a specific amount of evidence goes to the question of what is required before a state is allowed to do X. That is not the same as substantive due process, which asks whether the state is a allowed to do X under any circumstances at all. You seem to be conflating the two concepts solely because the more exacting procedural requirements will sometimes lead to a different substantive result. But that proves too much; procedural due process always does that. Surely the state could convict far more criminals and execute far more murderers if the elements of the offenses were the same but the only evidence required to secure a conviction were probable cause, or if the jury were only required to agree by a simple msjority, etc.

    Nevertheless, I’m glad you brought up those cases, because they highlight what’s wrong with the fundamental right that you and Patterico are proposing. The “Abortion Amendment, the Sodomy Amendment, [and] the allegedly forthcoming Gay Marriage Amendment” as you term them, all spring from the same inferred substantive DP right – the right of privacy inferred from other rights in the Constitution (the “no execution of minors amendment” is irrelevant because that is an 8th A case and has nothing to do with DP rights).

    Actually, that’s not true, either, as the Eighth Amendment only applies to the states by way of an even more tortured reading of the DP clause. But I don’t want to go off on a tangent, so let’s ignore that example.

    In other words, the court has held that inherent in freedom is a sphere in which we can make our own decisions regarding sexual practices, reproductive decisions, and familial relations. It is a libertarian principle inferred from the text of the Constitution. What principle do you have to support your proposed right?

    The right to life, which unlike the alleged right to privacy, the written Constitution actually says something about.

    Xrlq (c51d0d)

  171. I agree of course on proof beyond a reasonable doubt. It’s fine to argue that that should be the standard, as he did in an earlier comment, but it’s more than a stretch to argue that it is, as he seemed to be arguing in the later one.

    Xrlq, Yi-Ling:

    That’s right. There should be a standard for these cases (clear and convincing is OK for the state to step aside and allow the cutodian to withdraw life-preserving measures above a state minimal standard.

    In the Schiavo case, due only to the abuse of the law committed by Greer, the effective standard must be “beyond a resonable doubt” as he made this into a capital offense case as demonstrated by his order.

    Paul Deignan (b606ca)

  172. Paul, I don’t think that follows. Forget Terri Schiavo in particular, forget whatever you know or think you know about George Greer, and forget the specific requirements of the applicable Florida statutes. Assume the State of Oregon requires the state to kill every patient who is PVS and has executed an advance directive stating a desire to be killed if he’s diagnosed as PVS. Assume that Patient Y [I’m skipping the letter X lest anyone mistake the desires of my hypothetical patient for my own] executes an advance directive saying “if at least 3 out of 5 neurologists agree I am PVS, and all 5 agree I’ll never recover to the point where I can take care of myself, please kill me.” Shortly after executing said directive, he becomes incapacitated, five neurologists examine him, and all five agree he is PVS. His wife attempts to intervene, saying “don’t kill my husband, I don’t care what he wants, I want him alive.” The judge says sorry ma’am, but it’s not your call. Oregon law says if he wanted to die, he gets to die, and I see no evidence he didn’t, so I’m issuing an order stating that his wishes will be carried out.

    I say, under those circumstances, it should be enough to establish clear and convincing evidence that the advance directive was not forged, and a preponderance of evidence that the patient did not subsequently express a contrary intent. Do you disagree?

    Xrlq (c51d0d)

  173. I’ll start with the easy one. Dafydd – Yes, Justice Scalia has said that many times in opinions. I can’t recall a specific example off the top of my head, but that has always been his philosophy. Hopefully, some of the conservative lawyers on this thread will vouch for me on this one.

    Oh, come now, Angry Lawyer. I could make a claim that Ronald Reagan often remarked how much he admired Che Guevara and defend it with the same words you just used. I guess it wasn’t “the easy one” after all.

    And I’m still waiting for one of the “conservative lawyers” to vouch for you on this point.

    The reason I ask — and the reason I am skeptical — is the ease with which people rewrite the actual words of Scalia and Bork and suchlike to paint them as far more extreme than, in reality, they are. Thus, I want to see the exact words that Scalia used… because I suspect that your characterization of them is somewhat lacking in accuracy.

    As the Supreme Court explained in Matthews v. Eldridge, procedural due process involves whether someone has had notice and an adequate opportunity to defend. However, when the Court holds that the constitution mandates certain outcomes of that process, then it is plainly creating new, substantive consitutional rights. And the application of one particular evidentiary standard over another is oftentimes outcome determinative.

    Um… just on a lark, wouldn’t you also say, Angry Lawyer, that “whether someone has had notice and an adequate opportunity to defend” is also “oftentimes outcome determinative?”

    Dafydd

    Dafydd (df2f54)

  174. Xrlq,

    I have a fundamental problem with your suggestion. The state cannot be in the killing of citizens business. The Oregon law you propose is unconstitutional on its face. The only exception it appears to me is embodied in the 5th Amendment wherby it is not the state that executes the individual, but the people (his peers) through the indictment/presentation and whatever due process they determine as the judicial standard.

    We have decided that “beyond a reasonable doubt” is the minimal standard of proof for capital offenses. So any less burden would be inconsistent and would violate the 14th Amendment.

    The relationship that cannot be breached is that those in power (the state) killing the citizens directly. If that were to happen, we would fall into state terrorism–our whole judicial system/laws/everything would quickly become perverted.

    In your example, who selects the neurologists? Certifies them? Defines PVS? You see, all of these decisions are government decisions that can be put together in any of various methods to produce a result that the government seeks. (Soviets did this also). It’s an old trick which I am sure was used by imperial England as well (we know it was).

    Ultimately, we have a contract with our fellow citizens–the Constitution. Because it is necessary to take guilty life in order to save innocent life on occassion, we allow a carefully guarded death penalty. The people must always be in the loop of control of that ultimate social sanction. Thus, indictment/trial/jury of peers/etc. are all requirements.

    The state alone can provide life-preserving benefits as a society to a virtually unlimited degree. That does not imply that the state can deny life to an infintesimal degree no matter what a person says that they want. Death is not a benefit that the state can provide. It can only step aside and not intervene in the process of a natural death within the limits of decency of that society.

    Once an individual coopts OUR government to put a gun to his head, he is also using our government to put a gun to all our heads. A person by his own hand can kill himself. It should always be by his own hand (preferably far away from decent society).

    Paul Deignan (b606ca)

  175. Xrlq,

    BTW, there is a perversion of logic by want that is implicit in your argument.

    We say we would wnat to be dead (not me) rather than to be PVS. Once PVS, we arguably don’t know much of anything, so what is the matter? The past me is dictating to the future me who cannot respond.

    If I am PVS, I am still a person. I am just not the same thinking person that I used to be. For that matter, I am a different (hopefully better) person today than I was yesterday. However, I might be worse. Time progresses invariably but progress does not.

    I cannot dictate to the future me whether or not fortune is fair. I live day by day and instant by instant. Because I am sovereign, this is my cross to bear and mine alone. You are not responsible for my decisions, perhaps for my condition, but not my decisions. I can ask your advise, but the decision is always mine and mine alone.

    I may not like what the future will bring, but I will have to face it irregardless. This is just a fact–it is inescapable.

    (Even Siamese twins each have individual minds).

    Paul Deignan (b606ca)

  176. Dayydd, Xrlq, Scalia wrote in his concurrence in the Cruzan (right to die) case:

    It is at least true that no “substantive due process” claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against State interference.

    Scalia goes on to discuss the legal status of assisted suicide when the 14th amendment was passed. So he seems to be applying a standard similar to that claimed by AngryLawyer.

    James B. Shearer (fc887e)

  177. Not at all. Read it in context, and it becomes clear he’s providing background, not arguing that evidentiary standards are sustantive rather than procedural. Other parts of the court ruling make this clear. From the court’s opinion:

    The difficulty with petitioners’ claim is that, in a sense, it begs the question: an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a “right” must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.

    From Justice Brennan’s dissent:

    Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require “clear and convincing” evidence of Nancy Cruzan’s prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. See ante at 282-283, 286-287. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity.

    Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan’s wishes or are at least consistent with an accurate determination. The Missouri “safeguard” that the Court upholds today does not meet that standard.

    . Just as a State may not override Nancy’s choice directly, it may not do so indirectly through the imposition of a procedural rule.

    Xrlq (c51d0d)

  178. Reference Post 167 and 168 on proposed amendment to section 765.401(3) Fla. Stat.

    Paul, I found it difficult to make out your point

    Include with that last part, “and the rest of society” and also “above and beyond that promised by the state as generic to all citizens”.

    Of course, this would just be codifying the reality and importance in establishing a minimal standard guaranteed by the state. It would also add to the state the burden of being a clearinghouse for care of the indigent above and beyond the state minimal standard of care.

    Can you try to get into the proposed amendment and show me, where your points come in?
    When you say “rest of society” are you talking of social security check to patient and medicare?

    If patient “Y” is abled person but needs heart surgery and has no insurance, and cannot afford cost of surgery, he would die without the surgery, and that’s okay right.
    He has to pay for it himself and cannot expect others to pay for him unless they want to be generous and donate the money to him.

    How is this different from a PVS patient who say, needs a ventilator or a feeding tube? So if we equate “ventilator” and “feeding tube” with treatment, then we are dealing an even hand to the abled person with heart problem and a PVS patient on ventilator or feeding tube? Just puzzled. This is back door argument to whether feeding tube is “medical treatment”, like coming a full circle where most would say, at first, it is NOT medical treatment because it is food. What do you think?

    Yi-Ling (41ba16)

  179. Not at all. Read it in context, and it becomes clear he’s providing background, not arguing that evidentiary standards are sustantive rather than procedural. Other parts of the court ruling make this clear. From the court’s opinion:

    Hmmm… Xrlq, hard to disagree with a court opinion, even if each one of them said something slightly different even amongst themselves, ummmm…. , issues of whether judges, esp. the high court, are/is into legislating from the bench aside.

    Okay, in good faith and to bridge the gap, I answered your question Post No. 141 at Post No. 147.
    Could I have a reply, please ?

    Yi-Ling (41ba16)

  180. Patterico, I spotted your comment /reply

    [Yi-Ling: try posting your comment from yesterday again – ONCE. I deleted it because you posted it so many times. I meant to leave one but apparently didn’t.

    ALL: If you have a long post with a bunch of links, it will go into moderation. Post it only once. – Patterico]

    Okay, I shall repost at Schiavo’s Original Documents and Testimony, but since some of it has been posted here and discussed, I might want to see how I can touch it up incorporating some points raised here, including the ones by Paul.
    I might as well wait for Paul’s further proposed amendments to section 765.401(3) Fla. Stat. & then mull over it and then repost at Schiavo’s Original Documents board.

    Thanks :-)

    Yi-Ling (41ba16)

  181. Yi-Ling,

    The state is on the hook for a certain minimal standard of care as per the law of the state. For example, in the US we will provide the indigent (as we define) with aid for housing, food, and healthcare.

    In the proposed scheme, I suggest that in addition to this minimal standard in order to allow the satisfaction of extraordinary care situations, that the state act as a clearinghouse for matching indigents with benefactors.

    The idea is that anyone who would like to help a person stay alive (if in conformance with that person’s written directive) should be encouraged to help. This is good for society.

    The potential benefactor pool includes “everyone” to include corporations foreign and domestic.

    Paul Deignan (31ec39)

  182. In the proposed scheme, I suggest that in addition to this minimal standard in order to allow the satisfaction of extraordinary care situations, that the state act as a clearinghouse for matching indigents with benefactors.

    You are s-e-r-i-o-u-s ! You want this l-e-g-i-s-l-a-t-e-de huge administrative charges, you realise? Significant numbers of people have to be employed, an office found, rental paid, salaries paid. Where do you propose the budget for this comes from? From the state? Where would the state create a new item of this big budget? Take away part of budget allocation for child care, etcetra… ?

    Yi-Ling (078478)

  183. Yi-Ling, I’m not sure which of your many statements you want me to reply to. As to good faith, I think your position is that it would serve as a defense after the fact, but may not be enough to persuade a court to allow you to kill the patient in advance. If so, the idea sounds reasonable enough to me, but i don’t know enough about the Florida Statutes to know if it they can reasonably be read that way.

    Xrlq (c51d0d)

  184. Paul, when you reply, recall that Michael asked on her behalf, $ 6 to 12 million to take care of her for 50 years expected natural life . She was awarded $ 750,000. Still a good sum, even if about 10% only of what she had asked for; but nonetheless a huge sum for 1 person only. That would be about $ 15,000 per annum if you take $ 750,000 and divide by 50 years. That would be $ 1,250 per month or $ 312 per week. That’s just 1 person, Paul.

    That’s capital of $ 1250 per month for next 50 years for 1 person, and with such capital and 10% rate of return on investment, I would have doubled tripled quadrupled …. the initial capital. It would be good money that can donated, if $ 1250 is to be donated, once a year, to orphanages, shelters of all sorts.

    If you take that tack, then we need not bother with paying hefty sums for insurance, and just ask this proposed ideal state admin. center to match us with a benefactor, so that we can have our operation paid for. Birthing mothers can ask for $ 5000 to 10000 for delivery, by calling in to the proposed state admin. center. Where will it end? How will it end?

    The proposed state admin center will be busy collecting names of benefactors and sending out flyers letters emails asking for donation for all causes? Busy day at work? :-)

    Yi-Ling (078478)

  185. Yi-Ling,

    Yes, I am serious. It can all be done over the web. The effeciencies of this form of charity would likely save money dollar for dollar spent.

    We already arrange adoptions like this.

    It is a genius idea.

    Paul Deignan (31ec39)

  186. Yi-Ling, I’m not sure which of your many statements you want me to reply to.

    Xrlq, if you are willing, that is, I was referring to the possibility of your replies, if any, to each item, marked #(1) to #(8) at Post No. 147 for a start, so I can see where we differ and how and why we differ.

    Yi-Ling (078478)

  187. We already arrange adoptions like this.

    Gee, that’s not what I know. We pay good money to adopt, and there’s all sort of investigation papers that the center would conduct which costs money and personnel time.

    Even the much talked about embryo adoption by Nightine or was it Snowflakes, requires the intended adoptee parents of the embryos, to pay a few thousand dollars to enable the center to do the matching work of embryos :-)

    And Bush also asked Congress to give $ 1 million to enable grants to encourage this sort of embryo adoption.

    BTW would you also be asking for some sort of Congressional allocation for your pet project? :-)

    Yi-Ling (078478)

  188. Here is what Angry Lawyer claimed:

    Do you accept Justice Scalia’s view that the only substantive DP rights should be those that were in existence at the time of the ratification of the 14th A?

    Here is what James Shearer quoted:

    It is at least true that no “substantive due process” claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against State interference.

    Scalia goes on to discuss the legal status of assisted suicide when the 14th amendment was passed. So he seems to be applying a standard similar to that claimed by AngryLawyer.

    James, I certainly did not think that Angry Lawyer was making up his claim out of whole cloth; but what I thought — that he took a perfectly reasonable statement and warped it into a risible one — is certainly not shot down by the quotation you found (it doesn’t prove it, because Angry Lawyer might have been relying upon a different quotation I haven’t seen yet).

    But what you quote Scalia saying is quite reasonable: that substantive due-process (SDP) rights should be only those that are “historically and traditionally protected against State interference.” However, I recall reading about Supreme Court decisions that predate the Fourteeth amendment, yet which protect several such rights against state interference.

    In fact, as I read the post-14th decision in Cruikshank, the Court at that time was drawing a distinction between Congress (or the courts) protecting citizens’ rights from depredation by the state, and the reach of the actual statute the Court was in the process of throwing out, which forced states to protect the rights of one citizen against another private citizen; the former was within the purvue of Congress, the latter (at that time) was not, ruled the Court. So the Scalia limitation is likely nowhere near as broad as many people would assume.

    It seems the distinction here is between saying the federal courts can order a state not to do X, which deprives its citizens of a right; and the federal courts saying a state must do Y to affirmatively protect the rights of a citizen when they are being denied by another citizen. Both of these could be substantive rights, at least as I took the distinction from something Xrlq said.

    For example, I suspect a Supreme Court of the 1850s would have held that a state could not begin arresting all Catholics; but it would have ruled that Congress could not force a state to prosecute private discrimination against Catholics.

    Getting back to the mangled version of this idea that is probably behind Angry Lawyer’s claim, I am not even certain whether he means that Scalia claimed a prohibition against any SDP rights that were not in Platonic existence in 1868 (that is, they did not exist even in potentia), or whether Angry Lawyer claims that Scalia would oppose any Court-discovered SDP rights that were not officially recognized in 1868, even if they were of precisely the sort that would have been protected had such cases arisen.

    For example, I don’t think there have been all that many (or any?) Supreme Court cases on the Third Amendment. But suppose tomorrow, Massachusetts began forcibly quartering national guard troops in the houses of Republican-leaning hamlets in that state (assuming there are any); and suppose the case came before the Supreme Court… I’m convinced that Scalia would hold that the right to be free of such quartering is one that was “historically and traditionally” recognized and protected by the feds against state assault, even though there was never a case about it.

    I’m sorry, but I simply refuse to believe that Antonin Scalia would hold that states had the absolute authority to quarter troops in private houses. That is manifestly absurd.

    And if that is the case, that the Scalia restriction on SPD rights is to what would have been protected in 1868, rather than only those things that had actually come up for litigation already, then Angry Lawyer’s paraphrase of Scalia is wildly distorted.

    Which is what I still think.

    Dafydd

    Dafydd (df2f54)

  189. Yi-Ling,

    No one said adoptions were free. Please don’t be so dense. Think. Read. Understand.

    Paul Deignan (bf1683)

  190. Xrlq, if you are willing, that is, I was referring to the possibility of your replies, if any, to each item, marked #(1) to #(8) at Post No. 147 for a start, so I can see where we differ and how and why we differ.

    OK, here goes:
    1. Disagree. I do not believe Terri wished to die.
    2. I agree that there’s doubt here, too, but I have a lot less doubt about PVS than I do about Terri’s wishes.
    3. Agree.
    4. Disagree. Florida courts must comply with the requirements of both federal and state law. In this particular case, the requirements happen to be the same. For purposes of the 14th Amendment, due process is what it is; it’s not something Florida courts or the Florida Legislature can change. Only an amendment to the federal Constitution can do that.
    5. Disagree. The Fourteenth Amendment clearly prohibits the states from depriving people of life without due process of law. That’s a federal standard, which is either met, or it isn’t. Terri’s Law II did not give Terri any new constitutional or quasi-constitutional rights. What it did do is give federal courts jurisdiction to rule on the rights she already had, but previously could not enforce.
    6. Agree.
    7. Agree. The reason I brought up Bush v. Gore was to point out the absurdity of the notion that court rulings are not state actions. If they weren’t, there would have been nothing for the U.S. Supreme Court to review. While the Court was split down the middle on the ultimate ruling, they were 7-2 on the 14th Amendment issue, 9-0 on the non-issue of whether or not the Florida Supreme was a state actor. But the fact you can’t appeal a U.S. Supreme Court decision anywhere also illustrates my earlier point, which is that situations exist where you may well have a legitimate constitutional violation, but no court will have jurisdiction to enforce it.

    8. Here’s how I understand your question: if state law already requires the highest standard that federal law could require, why not punt on the federal issue, and just review the evidence to ensure that Florida law was met? That approach will work for any court that has jurisdiction to review both the state and the federal law issues. Unfortunately, the federal court in this case only had jurisdiction to review the federal issues. The mere possibility that Florida failed to apply its own standard does not automatically translate into a due process violation under the federal Constitution. Only failure to adhere to the federal standard can do that. And to find out whether or not the federal standard has been met, first the judge needs to rule on what that standard is.

    Xrlq (c51d0d)

  191. Dafydd:

    For example, I suspect a Supreme Court of the 1850s would have held that a state could not begin arresting all Catholics; but it would have ruled that Congress could not force a state to prosecute private discrimination against Catholics.

    I suspect you’re right, but probably not for the reason you have in mind. Substantive due process, at least as it is applied to the states, is a judicial creation under the 14th Amendment, so a court could not have struck down a state law on that basis beforehand (nor, of course, was there any vehicle for incorporating the First Amendment, which would be the most obvious objection if a state were to enact such a statute today). A law like that would, however, likely be deemed a bill of attainder, which is prohibited by Article I, Section 9 the original Constitution.

    Xrlq (c51d0d)

  192. Gee, that’s not what I know. We pay good money to adopt, and there’s all sort of investigation papers that the center would conduct which costs money and personnel time.

    No one said adoptions were free. Please don’t be so dense. Think. Read. Understand.

    Paul, let me set the background. Couples or women who want to donate their embryos, do it free. There is no charge. They do not sell their embryos unlike babies for a fee. However the center that arranges the adoptee parents of the embryos charge the couple a fee for the administrative paper work. That’s a few thousand dollars :-) And mind you that is a Christian center where they are not out to make a profit, but they nonetheless have to pay their staff, pay rental, phone bills, etcetra… and that’s why its few thousand dollars per applicant for the embryos. That would give an indication to us, as to the cost of running your proposed center.

    So you see I do understand the hefty cost of paper work and administration and the cost of running a center, but you seem not to understand.

    Your proposal does not take into account the huge administrative cost for running such a center, where once you open the door to patients in PVS, you would also be inviting others to knock on your door.

    Yi-Ling (680dd8)

  193. if state law already requires the highest standard that federal law could require, why not punt on the federal issue, and just review the evidence to ensure that Florida law was met? That approach will work for any court that has jurisdiction to review both the state and the federal law issues. Unfortunately, the federal court in this case only had jurisdiction to review the federal issues. The mere possibility that Florida failed to apply its own standard does not automatically translate into a due process violation under the federal Constitution. Only failure to adhere to the federal standard can do that. And to find out whether or not the federal standard has been met, first the judge needs to rule on what that standard is.

    Can we back up a bit, Xrlq? If there was no Terri’s Law II, would your statements above still hold good? Are you saying this is going to apply to all states cases which involve this PVS issue? Is it not then that you would require all state legislatures to comply with the federal standard? If yes, who gets to decide the federal standard, and on what basis are they deciding the federal standard as Cruzan was also hedging the issue of the minimum standard. By what criteria do judges kept apart from the economic hub of states know what is the minimum standard? Do judges have the wherewithal to make those decisions? Should not those standards be best left to each state legislature?

    And to get clarification, what is your take on Cruzan? That it requires c&c standard? That it requires BYRD standard? That it says c&c standard is permissible and sufficient compliance of DP but it does not set c& c standard as the bench mark for compliance of DP, in which case, it opens the door to states legislatures to even use preponderance standard?

    The next issue, is what are we really looking at DP from federal law point of view? Is it just the standard of proof of evidence ? Or is it more? And what more, if more? Is it trial by jury of one’s peers? Does it extend to issue of standard of proof of medical condition, too? What other issues can it extend to? Is this the cap or limit of issues, or is it a floodgate situation, where, any state legislation on Advanced Health Care Directives is going to come under the microscope of federal DP?

    Yi-Ling (1c09aa)

  194. Yi-Ling,

    This quote:

    Gee, that’s not what I know. We pay good money to adopt, and there’s all sort of investigation papers that the center would conduct which costs money and personnel time.

    is not what I said. Lets be careful in our attributions, OK?

    Paul Deignan (1fef6d)

  195. Yi-Ling,

    And BTW, we are now way off topic, so I have to leave it at that, sorry.

    Paul Deignan (1fef6d)

  196. The Fourteenth Amendment clearly prohibits the states from depriving people of life without due process of law.

    I am beginning to suspect this issue has been wrongly framed. Since money is admittedly the issue or barrier to medical treatment, for abled persons as well as for PVS patients, no one has said, “We are depriving abled persons of life by putting obstacles to their getting medical treatment that could save their lifes.” No one has said that, because no one would think of saying that. So why say that of withdrawing feeding tube, which is a kind of medical treatment, for its nursing care too, unless we want to split hairs and say nursing care is not medical treatment.

    Back up to the point where the person “Y” has a heart attack, and if you do not resuscitate the person, there is no problem. If you do good , then you are lumbered with this legal requirement to continue to do good. Kinda makes people refrain from doing good for once they have done it, the obligation is continuous and 14th A kicks in, and your hands are tied by federal DP.

    So there is no legal duty to save life by calling the para medic, even if one says paramedics called have a contractual duty to resuscitate the patient. From stand point of no duty, and once the moral good is done, then a duty arises with 14th A kicking in?

    Yi-Ling (1c09aa)

  197. And BTW, we are now way off topic, so I have to leave it at that, sorry.

    Paul, the topic was you had an idealistic plan for the state to connect benefactors to PVS patients who cannot afford medical treatment and nursing care, so that you can affirm the principle of life of PVS patients. I just pointed out the huge administrative cost to show that it is not such a feasible plan, for your small window for PVS patients would attract other cases which are not PVS, but say, others who cannot afford medical treatment for one reason or another.

    Yi-Ling (1c09aa)

  198. If Schiavo had not come to court, and even in the face of dispute with Schindlers, if he had just pulled off the feeding tube, he could stand his ground and say, there is c&c evidence of this and that. Further if sued, he could say, I did it in good faith.

    So in such situation, the state is off the hook, and just because the state took the responsibility of deciding a dispute that parties are allowed to refer to the probate court, then, the standard jumps higher?

    Makes no sense, to have two standards where proxy is also human person but Greer person and not Michael person.

    Yi-Ling (1c09aa)

  199. Further if sued, he could say, I did it in good faith.

    765.109 Immunity from liability; weight of proof; presumption.–

    (1) ……………..The surrogate or proxy who makes a health care decision on a patient’s behalf, pursuant to this chapter, is not subject to criminal prosecution or civil liability for such action.

    (2) The provisions of this section shall apply unless it is shown by a preponderance of the evidence on authorizing or effectuating a health care decision did not, in good faith, e provisions of this chapter.

    Yi-Ling (1c09aa)

  200. 765.306 Determination of patient condition.–

    In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient’s attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient’s medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.

    Where does DP come in here? If not, why have a different standard when it is also the same kind of decision that has to be made, the result is the same, even if the person deciding it is different.

    Yi-Ling (1c09aa)

  201. 765.109 Immunity from liability; weight of proof; presumption.–

    (1) ……………..The surrogate or proxy who makes a health care decision on a patient’s behalf, pursuant to this chapter, is not subject to criminal prosecution or civil liability for such action.

    Greer was the proxy in this case, not Michael.

    Yi-Ling (278da6)

  202. Since money is the issue, we should consider reframing the PVS patient issue to “Constitutional Right to Medical Treatment” if ANY.

    If patient “Y” left an advance health care directive that he wants to live until his natural life ends, whatever his condition, coma or PVS, and if he left insufficient money to take care of his nursing care, stay in hospice, and no one wants to foot the bill; where do we go from here?

    Honour his request, but HOW? Reality sinks in and we remove the feeding tube as a more humane way than neglect nursing care and he gets bed sores and this infection creeps in and his whole leg is infected and smelly with pus and all. It also hurts more.

    So since he has no constitutional right to medical treatment, we can remove the feeding tube without any legal risk of killing a life that wants to continue living.

    Admit this stark but true naked reality, and you will dispense with fed DP, a misconceived issue, because of our blind spot that it costs $$$$ to provide nursing care for PVS patients.

    Since there is no constitutional right to medical treatment, there is no illegal act in removing feeding tube when the bank account runs dry or when survivors opt to put the money for children’s education than pay for expensive nursing care.

    Yi-Ling (278da6)

  203. Bedsores

    Bed sores can occur when a person is bedridden, ….. [ as are PVS or MCS patients] , or immobile. Bed sores are ulcers that occur on areas of the skin that are under pressure from lying in bed, sitting in a wheelchair, and/or wearing a cast for a prolonged period of time.

    A bed sore develops when blood supply to the skin is cut off for more than two to three hours. As the skin dies, the bed sore first starts as a red, painful area, which eventually turns purple. Left untreated, the skin can break open and become infected. A bed sore can become deep, extending into the muscle. Once a bed sore develops, it is often very slow to heal. Bed sores often occur in the buttocks area (on the sacrum or iliac crest), or on the heels of the feet.

    So families who cannot afford nursing care have to care for the PVS patient, but if they have 9-5 jobs and some social life, they will neglect the PVS patient. Within some time, bed sores will set in and infection sets in, and that would kill the PVS patient.

    To those who say there is a right to life, is his NOT criminal neglect, where we should haul families to criminal court for criminal neglect that PVS patient who expressly wants to live, die from bed sores?

    Yi-Ling (278da6)

  204. To those who say there is a right to life, is this NOT criminal neglect or even manslaughter, where we should haul families to criminal court for criminal neglect or manslaughter that PVS patient who expressly wants to live, die from neglect and bed sores?

    Yi-Ling (d9cadd)

  205. IT’S NEVER LATE TO READ AND DISCUSS A POST ABOUT THE LEGAL PROCESS
    So be sure to check out this comprehensive post by Patterico….

    Pejmanesque (2ae9b5)

  206. I suspect you’re right, but probably not for the reason you have in mind. Substantive due process, at least as it is applied to the states, is a judicial creation under the 14th Amendment, so a court could not have struck down a state law on that basis beforehand (nor, of course, was there any vehicle for incorporating the First Amendment, which would be the most obvious objection if a state were to enact such a statute today).

    Actually, that reasoning was not changed by the 14th Amendment… at least not immediately. The case I cited, Cruikshank, was decided in 1875, seven years after the 14th was ratified; yet it’s primarily distinguished by the lengthy holding that Congress has only limited powers:

    1. Congress can protect citizens of the United States from being deprived of any of their rights by state governments;

    2. Congress can protect citizens of the United States from being deprived of their created rights by anyone; by “created rights,” as I use the term, I mean those rights specifically created by the ratification of the Constitution… for example, the right to vote in federal elections and the right to petition the US government for redress of grievances. Cruikshank held that Congress could enact legislation to prosecute Angry Lawyer if he were to interefere with Patterico’s right to petition Congress about the BCRA, for example.

    3. But with regard to other rights which the Court held were inherent, and which predated the Constitution, the Court in Cruikshank held that Congress had no authority to protect such rights of one private citizen against infringement by another private citizen. (The facts of the case were that Cruikshank and his cronies were nightriders who attacked a group of blacks, terrorized them, disarmed them, and prevented them from peaceably assembling; Cruikshank et al were arrested and convicted under a federal law, but they appealed and the case wound up at the Supreme Court.) Such inherent rights included the freedom to peaceably assemble, freedom of speech, press, and religion, the right to keep and bear arms, habeus corpus, and so forth (most of these cited by name by the Court as examples).

    Such inherent rights (of one citizen against another) were to be protected by the states, not by Congress; however, Congress could protect such rights of a citizen against infringement by the states themselves (or by the feds, of course).

    So even for a few years after the 14th amendment, courts did not believe that Congress could enforce substantive rights — due process or otherwise — of one citizen against another citizen, but only against the states themselves. In 1875, the era of the incorporation doctrine was still a half century in the future.

    Dafydd

    Dafydd (df2f54)

  207. Scalia wrote in his dissent in the BMW punitive damages case:

    I do not regard the Fourteenth Amendment’s Due Process Clause as a secret repository of substantive guarantees against “unfairness” – neither the unfairness of an excessive civil compensatory award, nor the unfairness of an “unreasonable” punitive award. What the Fourteenth Amendment’s procedural guarantee assures is an opportunity [ BMW OF NORTH AMERICA, INC. v. GORE, ___ U.S. ___ (1996) , 2] to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable.

    So I doubt Scalia would rule that Terri Schiavo’s federal rights were violated.

    James B. Shearer (fc887e)

  208. Another Scalia quote from his concurrence in the Cruzan case:

    Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection – what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.

    This suggests Scalia might have problems with Congress writing a law which applies to Terri Schiavo only.

    James B. Shearer (fc887e)

  209. Yi-Ling, I think the Fourteenth Amendment requires C&C evidence as to the patient’s desire to have his life ended under the circumstances. It does not necessarily require C&C as to other legal requirements that must be met. Suppose, for example, that someone executes an advance directive stating he wants to be killed if permanently incapacitated in any way that will prevent him from ordinary verbal communication, but state law only allows him to be killed if he is PVS. He is then incapacitated such that he is either PVS or will never reach a better state than minimally conscious. Evidence is spotty as to which, but is clear and convincing that in either case, he wants to be killed. Thus, no reasonable argument can be made he is being “deprived” of life even if the medical quesiton is not perfectly settled.

    And yes, I would require all state legislatures to comply with whatever the 14th Amendment requires. That should be a given. Anything less would make the 14th Amendment a nullity.

    By what criteria do judges kept apart from the economic hub of states know what is the minimum standard? Do judges have the wherewithal to make those decisions? Should not those standards be best left to each state legislature?

    That’s an argument against the 14th Amendment itself, not against my interpretation of it. Whatever the 14th Amendment requires, that’s a minimum standard that every state MUST meet, whether they want to or not. If they want to be more restrictive than the 14th Amendment requires, that’s OK, too.

    And to get clarification, what is your take on Cruzan? That it requires c&c standard? That it requires BYRD standard? That it says c&c standard is permissible and sufficient compliance of DP but it does not set c& c standard as the bench mark for compliance of DP, in which case, it opens the door to states legislatures to even use preponderance standard?

    None of the above. It only clearly rules that states may impose a C&C standard. It strongly suggests that they must, but it doesn’t actually come out and say that. It does pretty well rule out the possibility of beyond a reasonable doubt, however.

    What other issues can it extend to?

    Whatever allows the state to kill him. If the issue is his intent to die, then C&C on that issue alone is enough, since anyone who intended to be killed by the state can scarcely be said to have been “deprived” of anything once that wish is carried out.

    Xrlq (c51d0d)

  210. Xrlq: Whatever allows the state to kill him. If the issue is his intent to die, then C&C on that issue alone is enough, since anyone who intended to be killed by the state can scarcely be said to have been “deprived” of anything once that wish is carried out.

    Xrlq, your argument focuses on the state, where parties in doubt or in dispute approach the bench for a resolution. Any principle that is decided or upheld there, would also cut across the board. By that I mean, it would make it unconstitutional to deprive a PVS patient intent on living at all and under all odds, even PVS; and yet this would happen, because of pecuniary constraints ordinary people live with, where every cent counts and every dollar is made to stretch and conscientious struggle with whether to stretch the dollar at Walmart or shop at the local store to support them.

    A hypothetical for you, would be patient “Y” made a living will he wants to live even if PVS. He is PVS and the conscientious family are concerned about being charged for criminal neglect when they know they do not have the funds to pay for expensive full time nursing care. Dad is the PVS patient, and Mom goes to work 9-5, and children go to school and /or college. No one is at home 24 hours to turn Dad over every few hours as required for preventing bed sores. If bed sores arise, when dad is not turned over as frequently as needed, then infection and gangrene could set in, leading to death of PVS patient.

    Tommy is studying law and worries about being one day charged with criminal neglect for not turning his dad over every few hours ,and Cherry is worried about the morality of the issue when she discusses it in Confession with her RC priest, and so they decide, they should bring their doubts [ not dispute] to the probate court.

    They tell Greer who is still sitting in the same probate court, that , their dad had made a living will to live even if PVS, but they are a struggling family and cannot afford to pay expensive nursing care without Tommy leaving law school and Cherry leaving high school to work to pay for the full time nursing care.

    Alternatively it would mean Cherry has to forego schooling to take care of Dad full time with Tommy and mom chipping in. But then Tommy knows his grades will suffer somewhat.

    So they petition Greer for an order to remove dad’s feeding tube, and Greer looks at Fla. Law that says, it is important to determine the patient’s wish. Greer sees the living will that says patient wants to live even as PVS, and then considers the financial situation & emotional distress of the family and orders the feeding tube removed, because he now holds, that, 14th Amendment DP does not apply otherwise it would make criminals or villains of ordinary folks who cannot afford nursing care and do not have the time to nurse their loved ones, even though their loved one being attached to life, wants to live in PVS in the hope that medical science one day will find some treatment for them. Where there is life there is hope, thinks dad.

    Greer goes on to add, that, there is no constitutional right to provide medical or nursing treatment to abled persons as for PVS patients, and thus, one can withdraw feeding tube, without depriving PVS patient of their life.

    The order is made by Greer and the family then removes the feeding tube, with the blessing of the courageous and realistic court order.

    Over to you, Xrlq.

    Yi-Ling (d6f871)

  211. So they petition Greer for an order to remove dad’s feeding tube, and Greer looks at Fla. Law that says, it is important to determine the patient’s wish. Greer sees the living will that says patient wants to live even as PVS, and then considers the financial situation & emotional distress of the family and orders the feeding tube removed, because he now holds, that, 14th Amendment DP does not apply otherwise it would make criminals or villains of ordinary folks who cannot afford nursing care and do not have the time to nurse their loved ones, even though their loved one being attached to life, wants to live in PVS in the hope that medical science one day will find some treatment for them. Where there is life there is hope, thinks dad.

    Greer goes on to add, that, there is no constitutional right to provide medical or nursing treatment to abled persons as for PVS patients, and thus, one can withdraw feeding tube, without depriving PVS patient of their life.

    The order is made by Greer and the family then removes the feeding tube, with the blessing of the courageous and realistic court order.

    Over to you, Xrlq.

    Yi-Ling (c03fa7)

  212. On the standards of proof:

    Preponderence of the evidence
    Making a singular rational construction from the available evidence, one of two outcomes is more likely and correspond in a unique binary manner to the claims of the litigants.

    Clear and convincing
    Now multiple rational constructions are permitted based solely on the evidence presented. There is only one outcome being tested and it is clearly distinguishable from all other rational outcomes as the most likely event.

    Beyond a reasonable doubt
    Now any rational construction is permitted. However, no rational construction exists as a counterexample to an existant construction where guilt is likely.

    Here is the problem with clear and convincing in a case where a person may not speak for themselves: it precludes conception of the possible and relies only on what is presented as evidence.

    If the person is the object of a legal action, due process requires that they be able to input evidence into the consideration on their own behalf. After all, the world is a strange place and many bizarre events happen to individuals that others have no experience in (the military is a great example). The set of these bizarre incidents is arguably more common than the set of commonly understood incidents.

    So let me be very, very clear. C&C cannot be used by the state directly to support a state action that leads to the death of an individual that cannot rationally represent themselves in a proceeding. BYD is the minimal standard in these cases.

    C&C is OK for custody assignments to NOK and for the state to step aside allowing private action based on the individual’s chosen relationships as this respects the sovereignty of the individual as long as the social contract is not violated in the process i.e. one individual may not be allowed to undermine the will of the people who have lawfully emplaced certain relationships between state and individual.

    Paul Deignan (cd9bd2)

  213. So they petition Greer for an order to remove dad’s feeding tube, and Greer looks at Fla. Law that says, it is important to determine the patient’s wish. Greer sees the living will that says patient wants to live even as PVS, and then considers the financial situation & emotional distress of the family and orders the feeding tube removed, because he now holds, that, 14th Amendment DP does not apply otherwise it would make criminals or villains of ordinary folks who cannot afford nursing care and do not have the time to nurse their loved ones, even though their loved one being attached to life, wants to live in PVS in the hope that medical science one day will find some treatment for them. Where there is life there is hope, thinks dad.

    Now Greer is a conscientous judge who not only has to address the issue of the fed DP but also the Fla. Stat.

    Greer pulls out his old book on Guide for the Perplexed on Rules of Statutory Interpretation . He checks, ah! the literal rule? No that’s not applicable because to apply it would not render an absurd result where,

    If Greer says the Fla. Stat. is to be read literally, then, the PVS patient’s living will would have to be given effect to. Then he is already put on judicial notice that this average family would be unable to afford expensive full time nursing care, let alone cost of therapy and medicare is not sufficient either, not Dad’s social security checks, and Greer has also been put on judicial notice that no one would be prepared to sacrifice their career and future to take care of dad full time. So Greer knows if he used the first rule of statutory interpretation, the family would go home and try their best for a while, but in the end, circumstances would lead them to neglect turning over dad as frequently as needed to prevent bed sores.Dad dies from bed sores that led to gangrene, as they did not pull of the feeding tube because of Greer’s court order that they cannot remove the feeding tube. Then they worry would Tommy one day successful as a state AG, whether someone would dig up his past, leading to criminal charge for criminal neglect for not turning over his dad as frequently as needed to prevent bed sores and gangrene and death. Cherry one days decides to take on the habit [ be a RC nun] and anguishes over the emotionally distressful manner in which the family had to see dad develop bed sores at the heel and back where the pressure is greatest, and then, the sores became gangrenous. Cherry wondered whether they should have just disobeyed the court order and trusted their instinct and pulled off the feeding tube so that dad would not die in such an ugly manner. Tommy in his silent moment wonders where constitutional scholars have gone wrong to argue that 14th Amendment applies, making him feel a villain or cruel to his dad for his dad developing gangrene than having feeding tube pulled off. ….

    Now there are several rules of statutory interpretation and Greer chucks out the first literal rule and applies another rule that gives him the result he thinks is rational. With that, Greer explains why he interprets the Fla. Stat. such that notwithstanding the living will to live as a PVS patient, Greer could lawfully order removal of the feeding tube.

    The law has to make sense, and so too the constitutional interpretation be it of 14th Amendment or any other.

    Yi-Ling (c03fa7)

  214. Greer pulls out his old book on Guide for the Perplexed on Rules of Statutory Interpretation . He checks, ah! the literal rule? No that’s not applicable because to apply it would not render an absurd result where,

    Yi-Ling (c03fa7)

  215. So, the philosphical reasoning of why C&C is sufficient and necessary for these end of life custody/NOK private action in the loop situations ala Cruzan is as follows:

    As time progresses we are free to experiment with alternative courses of action (this is part of sovereignty). This allows us to learn something of our environment and selves. At any point in time, therefore, an observer could infer that we would do one thing or the other if our trajectories were extended. So the PofE standard is unconstitutional.

    However, if one trajectory is clearly distinguishable from all the other possibilities, then since we are part of a community, it is just that others be allowed to infer our characteristic trajectory (“wishes”) leading to a situation where this trajectory coupled with out chosen relationships may legitimize action to be taken within public policy on our behalf.

    Had Greer performed his duties within the law, there would be no problem. Terri would still be alive and in the custody of her parents due to Schiavo’s multiple conflicts of interest.

    Paul Deignan (cd9bd2)

  216. Greer pulls out his old book on Guide for the Perplexed on Rules of Statutory Interpretation . He checks, ah! the literal rule? No that’s not applicable because to apply it would not render an absurd result where,

    Yi-Ling (c03fa7)

  217. Yi-Ling,

    In the US, we provide for the indigent irregardless of whether or not they have a family that can pay for a nursing home.

    This is not the problem that you may think it is.

    Paul Deignan (cd9bd2)

  218. The hypothetical with Greer in the pretend hyopthetical, is to tease out the principles of law, constitutional interpretation of 14th Amendment and thus NON applicability to Fla. Stat. Chapter 765.

    As said above,

    Tommy in his silent moment wonders where constitutional scholars have gone wrong to argue that 14th Amendment applies, making him feel a villain or cruel to his dad for his dad developing gangrene than having feeding tube pulled off. ….

    Yi-Ling (c03fa7)

  219. In the US, we provide for the indigent irregardless of whether or not they have a family that can pay for a nursing home.

    This is not the problem that you may think it is.

    So where does Michael and his attorney in the medical malpractice law suit live, when Michael’s attorney in his opening address said that $ 6-12 million is needed to take care of her for her expected natural life of 50 years?

    And where do the members of the jury live since they gave about 10% of what he asked for her medical and nursing care to the tune of $ 750,000?

    Tell me where these people live and what they are talking about.

    Yi-Ling (c03fa7)

  220. Yi-Ling,

    Consider as if the indigent had no kin–only society with which they have agreed on certain laws.

    Money is no longer a factor case by case–only the laws. Thus the 14th applies.

    Paul Deignan (cd9bd2)

  221. Yi-Ling,

    As we have seen, just because they got the money to pay for Terri’s care doesn’t mean that they were compelled to care for her.

    That money was supposedly in some sort of trust away from Schiavo which was later taped under Greer’s direction to pay for Felos’ fees.

    Paul Deignan (cd9bd2)

  222. To refresh your memory, Paul, at Post No. 75, I had argued with you on Schiavo’s Original Documents board

    November 1992 – Opening Statements [ by Michael Shiavo’s lawyer], Medical Malpractice Trial

    You’ll find from the evidence past medical bills and lost earnings are in the neighborhood of $500,000, and to care for her in the future and compensate her for lost earnings, obviously, she cannot work. And if she lives a normal life expectancy, fifty-one years, and the cost of that, depending on whether or not in an institution or Mike takes her home is between 12 and 16 million dollars. They say, well, she doesn’t have a normal life expectancy. You’ll hear if she receives proper treatment, there’s no reason why she shouldn’t. And she is not just a head on a pillow. She can’t respond much but she can respond, and she does respond a little bit, not much. But enough to give him hope.

    http://www.geocities.com/purple_kangaroo_angela/Malpractice/malpracticenov1992opening.html

    Paul, tell me, what Michael’s attorney was talking about?

    Yi-Ling (c03fa7)

  223. I should add, the state was paying for Terri’s care. Meanwhile, in 2002 Schiavo’s assets were over $700,000. He wasn’t paying a dime since then (see Drummonds DCF review).

    Paul Deignan (cd9bd2)

  224. In reference to 222, errrrr, they are liars–like used car salesmen. Duh.

    (We are not surprised by this in the US anymore).

    Paul Deignan (cd9bd2)

  225. Yi-Ling,

    So just that you are clear, in the US the children of PVS parent can just walk away and leave that parent on the street for the state to take care of.

    Many do this. In fact, many do this with their own children. So we have adoption.

    Paul Deignan (cd9bd2)

  226. In reference to 222, errrrr, they are liars–like used car salesmen. Duh.

    Do not push me to doubt the intelligence of the members of the jury who awarded her $ 750,000 for her medical care and expenses for her expected natural life per actuarist statements or analysis.

    Nor that of the judge who heard the case and directed the jury, p-l-e-a-s-e.

    Yi-Ling (c03fa7)

  227. This suggests Scalia might have problems with Congress writing a law which applies to Terri Schiavo only.

    An interesting argument, James. The best I have seen yet. Worth a discussion.

    Patterico (756436)

  228. Yi-Ling,

    Sorry for the shocker–but this is the way the cookie crumbles as we have seen especially here in this instance.

    Greer again was the one at fault here for betraying the will of the jury.

    Paul Deignan (cd9bd2)

  229. So just that you are clear, in the US the children of PVS parent can just walk away and leave that parent on the street for the state to take care of.

    Well if the PVS parent had a feeding tube, putting him/her out on the streer would effectively remove the feeding tube, and that would amount to criminal neglect. One can still bring criminal neglect charge against the children and family.

    In the case of dumping new borns, one may not know who the mom or dad is, if the infant is left outside the orphanage all wrapped up with no identification. It would be impossible or ridiculous to do DNA test of all in the area to see who could be mom or dad of this abandoned new born. If such test was done and its found out who is mom and dad, their legal responsibility to the child still stands, whether the mom and dad are married to each other or not. Legitimacy issue is a by gone era in many states here in US.

    Adoption is a legal process, whether of new borns or older children or even embryos in the chiller.

    Dumping mom or dad who is PVS is not a legal process or legal procedure and is a criminal act.

    Yi-Ling (c03fa7)

  230. Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

    Patterico and James,

    The 14th doesn’t apply here and I see no reason why Scalia would have a problem with it.

    Remember, Terri was always the object of this contest, she never was the defendent or plaintiff. That is why this was supposedly a civil and not a criminal proceeding. Obviously, Greer blurred the lines here. Nonetheless, since it was never about protection, only about civil custody and directives (again–see the problem with Greer), there is no 14th Amendement problem with Terri II.

    Paul Deignan (cd9bd2)

  231. Dumping mom or dad who is PVS is not a legal process or legal procedure and is a criminal act.

    I once watched a movie where the sick and old Red Indians were left to die in the snow, while the whole camp moved to new hunting grounds.

    I think it is our inability to face this, that, we mess up constitutional interpretation and bring in the 14th Amendment DP to such PVS cases.

    My statement quoted above in an exchange with Paul, would indicate a reversal of a prior collected moment of thought and analysis that removing feeding tube when the family money runs low is okay and not criminal neglect and thus 14th Amendment does not come in at all.

    See hypothetical at Post No. 213 above.

    Yi-Ling (c03fa7)

  232. Well if the PVS parent had a feeding tube, putting him/her out on the streer would effectively remove the feeding tube, and that would amount to criminal neglect. One can still bring criminal neglect charge against the children and family.

    Only if the children were legal custodians and you were to take the phrase “out on the street” literally. Custodianship can be denied. No one is forced to be a custodian against their will.

    Paul Deignan (cd9bd2)

  233. Yi-Ling,

    Please let me be clear again.

    Custodianship is voluntary.

    Paul Deignan (cd9bd2)

  234. My statement quoted above in an exchange with Paul, would indicate a reversal of a prior collected moment of thought and analysis that removing feeding tube when the family money runs low is okay and not criminal neglect and thus 14th Amendment does not come in at all.

    Whether the money is coming from the patient or family or state or part of it from each party, it is good money that can be ploughed into productive areas and critical areas of growth, than ploughed into prolonged expensive nursing care of PVS patients.

    If part of it comes from the state, then it means it comes for our contribution.

    If only a few people make living wills to live as PVS, the cost is negligible but if a critical mass does that, the cost would be astronomical and bankrupt us.

    Yi-Ling (c03fa7)

  235. Oops,

    Patterico, James,

    I used the wrong argument. The 14th Equal Protection Clause forbids states from treating citizens unequally.

    It is OK for Congress apparently to do so.

    The more I think about it, the previous argument seems wrong. Sorry.

    Paul Deignan (cd9bd2)

  236. if a critical mass does that, the cost would be astronomical and bankrupt us.

    If we just go by the numbers that the jury in the medical malpractice suit awarded her for 50 years life support, $ 1250 per month or $ 300 + per week, what is the critical mass of PVS patients that can support this payment by patient, family, state?

    At what point would the ideal, bankrupt us? We are not thinking straight when we bring in DP because PVS patient is alive and thus a “person” per 14th Amendment. We should leave it to family and even go a further step to kindly and understandingly affirm their choices, more often it would be a realistic choice, when money runs low.

    The parent who imposed a tall order on his family with a living will, to live as PVS, the family who cannot rise to the tall order, should seek the court’s help to ride out this spot, and get a court order to remove his feeding tube.

    The court should deny that 14th Amendment applies here and affirm the petition seeking to remove the feeding tube contrary to patient’s wish, and order accordingly.

    Yi-Ling (c03fa7)

  237. Yi-Ling,

    Actually, I am consistent on your point. Money is irrelevant to the law.

    There may be a point, however, when we need to change the law due to practical concerns. But in the implementation of the law, money is no object for the state.

    Paul Deignan (cd9bd2)

  238. It is the state that makes the agreement with the citizen to provide certain MINIMAL services. The state (presumably) must obey its own laws.

    So I don’t agree with your line of thought that money is an issue. Go ahead and review the past posts if you have any further questions on this.

    I think everyone else here would agree with me on this issue.

    Paul Deignan (cd9bd2)

  239. I think everyone else here would agree with me on this issue.

    It could be everyone else here are constitutional scholars in ivory towers and shielded from analysis of the national and global economy, and thus money does not matter.

    Postgraduate law school does not teach much economics and neither does the Bar. Unless one wants to specialise in further postgraduate law on economy and law, with sub specialisation in regional and international trade agreements and international economy.

    Yi-Ling (c03fa7)

  240. Yi-Ling, if the state is taken out of the equation, the constitutional issue goes away. I’m not sure what the law should be in situations like that, where no private party is willing to pay the cost of keeping a patient alive indefinitely. I do think that situations like that have to be dealt with differently from the Schiavo case, where the state did not merely decline to provide life-saving treatment, it actually prevented Terri’s family from providing it at their own expense. In that situation, the state is killing someone. In yours, it’s merely NOT keeping them alive.

    Xrlq (c51d0d)

  241. James and Patterico,

    Another note about the EPC: it is phrased as the prohibition of a denial–so is a state denying someone equal protection by providing someone else more protection?

    Not necessarily.

    So what did Scalia mean? Apparently that it is sufficient that the states treat people equally within their jurisdiction. The Federal Government is a product of state elections, so my guess is that he sees no independent potential for Congress to declare that only group X can drive or that person B be taxed at 100% over subsistence. It’s rosy talk and probably not 100% accurate.

    Remember, the marginal rate was pretty punitive under Carter and the tax code had various loopholes for groups.

    Paul Deignan (cd9bd2)

  242. it actually prevented Terri’s family from providing it at their own expense. In that situation, the state is killing someone

    That assumes Greer made a wrong finding of fact of her wish, a point we disagree. I have explained on three boards on this patterico’s that, it was a right finding of fact but I have not heard any explanation for your view otherwise.

    So assuming if it were that it was her wish to die in MCS, your distinction falls apart.

    Yi-Ling (e20240)

  243. So I doubt Scalia would rule that Terri Schiavo’s federal rights were violated.

    This suggests Scalia might have problems with Congress writing a law which applies to Terri Schiavo only.

    James Shearer, I don’t know if your two conclusions are accurate… but neither has anything whatsoever to do with the wild claim that Angry Lawyer made anent Justice Scalia. Which evidently I must repeat, as you seem already to have forgotten it:

    Do you accept Justice Scalia’s view that the only substantive DP rights should be those that were in existence at the time of the ratification of the 14th A?

    Neither of your two quotations speak to this claim at all. And if you’re responding to somebody else — to Xrlq, perhaps — then lassoing Antonin Scalia and flinging him into the argument is likewise a non-sequitur.

    I have no idea what your point is anymore.

    Dafydd

    Dafydd (df2f54)

  244. I’m not sure what the law should be in situations like that, where no private party is willing to pay the cost of keeping a patient alive indefinitely.

    Xrlq, there are some who say, failing to provide fMRI test is criminal neglect.

    Why would we hesitate to say not turning over the patient to prevent bed sores is also criminal neglect? [ the reasons do not matter, whether it is inability to afford full time nursing or lack of personal time to nurse patient ]

    Yi-Ling (e20240)

  245. I think it safe to say that if any of the “conservative lawyers” in this comments thread were willing to back up Angry Lawyer in his claim above, they would have done so by now.

    Hence, to this point, Angry Lawyer is the only person asserting that Scalia holds such a wacky view of the Fourteenth Amendment… as opposed to the much more rational view as quoted by James Shearer.

    As much as anything can be proven on the Internet, I think I have proven that Angry Lawyer’s rewrite of Scalia mangled Scalia’s position and turned the reasonable into the risible. My gut feeling tells me that was more likely unconscious than deliberate: I suspect that Angry Lawyer really despises Scalia (and Bork) and is always willing to believe the worst of him, even when “the worst” is inherently preposterous.

    Dafydd

    Dafydd (df2f54)

  246. I think it safe to say that if any of the “conservative lawyers” in this comments thread were willing to back up Angry Lawyer in his claim above, they would have done so by now.

    I think it is safe to assume that none of the conservative lawyers are interested in doing pro bono work , or that they might work on the issue for a fee of $ 25,000/- . My husband twice, tried to file an amicus brief in the high court and was told by the Supreme Court Clerk that he had to get a US Supreme Ct qualified lawyer to file his amicus brief, and checking with these rare breed, the going rate was about $ 25,000/=, a bit out of budget. It would have taken a few days to a week’s work. Alternatively, Angry Lawyer could have outlined the ideas but it was not considered acceptable by you. I am not too good with this sort of things, as my forte is more of international economic law. I did chip in a bit on findlaw board, before the elections when outsourcing was raised in the VP and Pres. debates. Alternatively the conservative lawyers are not looking at this site or this particular board. So there could be many reasons why no one rose to the invitation issued by Angry Lawyer. Any one of them or any other could be it.

    Your dad would have told you, or you would have known that, the vibrancy of common law case law development for the past 800 years starting from UK and adopted here, by the early colonies and continuing since then, has an in built system and potential for diverging case law interpretation, which in built feature enabled common law to move with times and change with circumstances. Scalia as you know, frowned on the common law approach [considered suitable for common law (case law) development] being used for constitutional interpretation. Nonetheless much of constitutional interpretation has followed the common law approach & thus the approach would carry with it the inherent in built feature and potential for diverging interpretation of the constitution and the amendments thereto. So on a broad structural perspective, that no view has been expressed here to your satisfaction, by another conservative lawyer, does not, in principle, mean, none can be expressed or that there is none. The potential is inherent in the common law approach to constitutional interpretation, and the question would be why they are not rushing to volunteer their interpretation. Could it be time cost? For that is also the reason that Angry Lawyer excused himself on his last post.

    I, too, would have to also ask to be excused, but not without possibly another post to Xrlq or seeing if he has further replies.

    Yi-Ling (694111)

  247. P/S: Hint: Dom will say that this PVS :-)

    Dom will say what Dom will say, not what Yi-Ling says he will say.

    At the present state of the art, if an MCS or PVS patient displays something in fMRI or not, then the patient is nevertheless MCS or PVS. This is because the diagnosis is on the basis of all clinically relevant factors, and diagnosis was made before entering the patient into the fMRI study.

    If on this basis the patient is MCS, then Dom most definitely will not say the patient is PVS, not even as a joke with a smiley on it.

    Dom Rodavre (0afeec)

  248. Since money has crept into this discussion, I just thought the parties would want to know from a credible source:

    In November 1992, a jury in Clearwater returned a verdict in favor of Terri and Michael Schiavo for more than $6.8-million. The jury found that Terri had been the victim of substandard medical care that caused, in part, her coma. The jury also found that Terri was partly at fault and the verdict was reduced accordingly, to about $2-million.
    http://www.sptimes.com/2003/10/26/Floridian/The_lost_lesson_of_Te.shtml

    The part about Terri’s “fault” was her diet of 10-15 glasses of iced tea per day, which was thought to precipitate her hypokalemia and cardiac arrest.

    Dom Rodavre (0afeec)

  249. Your dad would have told you, or you would have known that, the vibrancy of common law case law development for the past 800 years starting from UK and adopted here, by the early colonies and continuing since then, has an in built system and potential for diverging case law interpretation, which in built feature enabled common law to move with times and change with circumstances. Scalia as you know, frowned on the common law approach [considered suitable for common law (case law) development] being used for constitutional interpretation. Nonetheless much of constitutional interpretation has followed the common law approach & thus the approach would carry with it the inherent in built feature and potential for diverging interpretation of the constitution and the amendments thereto. So on a broad structural perspective, that no view has been expressed here to your satisfaction, by another conservative lawyer, does not, in principle, mean, none can be expressed or that there is none. The potential is inherent in the common law approach to constitutional interpretation, and the question would be why they are not rushing to volunteer their interpretation. Could it be time cost? For that is also the reason that Angry Lawyer excused himself on his last post.

    Yi-Ling, do you have a relative named Carol Herman?

    Dafydd

    Dafydd (df2f54)

  250. Yi-Ling:

    That assumes Greer made a wrong finding of fact of her wish, a point we disagree. I have explained on three boards on this patterico’s that, it was a right finding of fact but I have not heard any explanation for your view otherwise.

    Then I either missed your explanation, or found it not to be persuasive. If you can point back to a specific comment I’ll be happy to re-read it.

    So assuming if it were that it was her wish to die in MCS, your distinction falls apart.

    As a constitutional objection, certainly. As far as I’m concerned, a state could set up a “suicide center” to administer lethal injections to any person who came in wanting to die. It would be a horrible idea, of course, but that doesn’t mean it would be unconstitutional. It only would be if anyone was deprived of life as a result of the center, and that would only happen if intent was presumed rather than established conclusively. A person who volunteers to be killed by the state has not been “deprived” of life any more than a person who willingly donates his property to the state has been “deprived” of property.

    Why would we hesitate to say not turning over the patient to prevent bed sores is also criminal neglect? [the reasons do not matter, whether it is inability to afford full time nursing or lack of personal time to nurse patient]

    The reasons do indeed matter. If cost is the issue, there can only be a violation of rights if you assume someone had a duty to pay that cost in the first place. Start from first principles: there is no duty to rescue a person in need, but there is a duty not to interfere with anyone else who may choose to do so voluntarily.

    James B. Shearer:

    This suggests Scalia might have problems with Congress writing a law which applies to Terri Schiavo only.

    Perhaps, but I rather doubt it. Federal private relief actions are not all that uncommon, so absent a long string of private relief actions all upheld 8-1 (or, for liberals into ugly racial stereotyping, 7-2), I think it’s a stretch to apply this standard to all laws referencing specific individuals, as opposed to elitist laws that generally shield the ruling class from the rules applicable to us commoners.

    Then again, who cares what Justice Scalia really thinks? If the liberals get to make up their own Super-Scalia caricatures to make their points, why should we let them have all the fun? My own personal more-strict-constructionist-than-the-strict-constructionists version of Scalia would see no 14th Amendment issue here at all, for the simple reason that the 14th Amendment by its terms applies only to the states, and not to the federal government.

    [Just to be clear, the real Justice Scalia would never endorse a theory like that. Instead, he go along with his eight colleagues in applying the doctrine of “reverse incorporation,” a jurisprudential theory so tortured it makes the better-known “incorporation” doctrine look straightforward by comparison. ~P –> X]

    Xrlq (c51d0d)

  251. Xrlq,

    A person cannot “volunteer” in relation to another entity with power as easily as it seems you suppose. For example, we do not consider sex between adults and minors to be consenual. In the military, relations between seniors and subordinates is fraternization.

    So, the state, having a molonoply on police powers cannot set up suicide centers and pretend that this is a strictly voluntary arrangement. The state has too much power over many aspects of people’s lives for this.

    We require some retrospection to be able to determine voluntary action. Here there would be none (well, that is a metaphysical question).

    Paul Deignan (fb29af)

  252. AngryLawyer asked (comment 128):

    Do you accept Justice Scalia’s view that the only substantive DP rights should be those that were in existence at the time of the ratification of the 14th A?

    I provided the following Scalia quote (comment 175):

    It is at least true that no “substantive due process” claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against State interference.

    Dafydd thinks (comment 245) these statements are very different. I on the other hand don’t see much difference between “in existence at the time of the ratification of the 14th A.” and “historically and traditionally protected”. In my view AngryLawyer’s version is close enough for an informal internet comment.

    As for my other two Scalia quotes (comments 206, 207) which Dafydd queries (comment 243) they were meant to address different issues.

    James B. Shearer (fc887e)

  253. Xrlq, I care what Scalia thinks because he holds an important position and because he is smart guy who is often interesting even when he is wrong.

    I also agree with his apparent belief that there are potential equal protection problems with laws which target specific individuals for unfavorable treatment.

    James B. Shearer (fc887e)

  254. So do I, I just think you’re reading too much into his opinion on equal protection (though not nearly as much as AngryLawyer did, prompting the above reference to my own private Scalia-strawman).

    As to substantive due process, a 14th Amenment doctrine, I’m still a bit confused as to how any substantive due process could have existed at the time of ratification of the 14th Amendment, unless “at the time of the ratification” means immediately following ratification.

    Xrlq (c51d0d)

  255. Xrlq:

    Having been rebutted, not just by her best friend (whose fatal mistake had nothing to do with any movies, but rather, involved correctly stating that Karen Ann Quinlan was alive in 1982 while Judge Greer “knew” she had died years before), but her entire immediate family, two treating nurses, an assistant, and just about everyone else who knew Terri and wasn’t named Schiavo.

    I’m not so sure I agree with your characterization of the “fatal mistake.” The life or death of Karen Ann Quinlan was just one of the reasons Greer cited for questioning the witness’ credibility. The fact that she contradicted her deposition testimony certainly doesn’t help, nor does the fact that she at trial had a crystal clear memory of things about which she only had a vague memory at deposition.

    But all that aside, according to Greer’s ruling, nobody ever testified that Terri Schiavo had said she herself wanted to be kept alive, only that she had made some remarks about what she thought should be done with specific other people. Meanwhile, three people testified that she made specific statements concerning what she wanted for herself, which are different in kind than statements about others.

    Does that meet the clear and convincing standard? Without seeing the specific testimony, I can’t know. But to argue that Greer somehow ruled out the testimony solely because of the Quinlan issue is to deliberately misrepresent his decision.

    tgirsch (4e6ab1)

  256. Xrlq, as I understand it substantive due process says the 14th amendment requires the states to provide certain rights as part of due process. Scalia is saying this should only apply to rights in existence at the time (1868) the 14th amendment was ratified. So for example since there was no established “right to die” in 1868 Scalia will not accept that the 14th amendment requires the states to provide a “right to die”. But since there was a generally recognized right to confront witnesses against you in 1868, Scalia might be willing to require that states provide an opportunity to confront witnesses against you as part of due process of law.

    James B. Shearer (fc887e)

  257. tgirsch,

    C&C requires no less than a written directive IMO.

    People must be free to explore options, ponder possibilities, and live their lives without predjudicing their future legal viability.

    Paul Deignan (fb29af)

  258. But to argue that Greer somehow ruled out the testimony solely because of the Quinlan issue is to deliberately misrepresent his decision.

    When the error was called to his attention, he did a little two-step to try to rationalize his mistake as unimportant. But reading the original order in context, the mistake was by far the major reason he rejected the testimony. The other reasons were far from compelling, and little different from witness issues the Schiavos had (one side had a refreshed memory, the other had a failure to come forward).

    Patterico (756436)

  259. James, that can’t be right, else “substantive due process” would just be another name for the doctrine of incorporation. Plus, it would be historically inaccurate. The earliest case I’m aware of that invoked substantive due process was Lochner v. N.Y., which found a “constitutional” right to liberty of contract that was violated by arbitrary economic regulation by the state. Jurisprudentially, it was the right wing equivalent of Roe v. Wade or Lawrence v. Texas. It wasn’t based on any rights anyone believed to have existed prior to the enactment of the 14th Amendment.

    Xrlq (c51d0d)

  260. Waving the Bear Flag 11: What a lot of Blogs edition
    Since the last editon of this series, in November, our numbers have grown, and awareness of the BFl in the wider Bloggerverse, and general public has as well. Justene Adamec, of CalBlog, has done a great service by wandering around

    Sneakeasy's Joint (af7df9)

  261. Paul:

    C&C requires no less than a written directive IMO.

    Not according to Florida law as written, which explicitly stipulates that oral statements are allowable in lieu of a written directive. Whether the state should require a written directive to meet C&C is irrelevant to the question of whether it does require it.

    tgirsch (4e6ab1)

  262. Florida may call a horse a cow, that doesn’t change the fact that there is nothing C&C about oral statements. C&C is a judicial standard–not a legislative standard. Ha, the law is probably unconstitutional as a violation of separtion of powers in Florida.

    You couldn’t get away with that in a contract over a candy bar.

    Paul Deignan (7c55a3)

  263. My replies to Dom Rodavre’s Post No. 247 & 248, Dafydd’s Post No. 249, and Xrlq’s Post No. 250, and tgirsch’s Post N0. 255 read with Patterico’s Post. No. 258, are still in my kitchen, in the oven. Hot stove oven :-) :-) :-)

    Yi-Ling (ff4bc3)

  264. Paul Deignan,

    Florida may call a horse a cow, that doesn’t change the fact that there is nothing C&C about oral statements. C&C is a judicial standard–not a legislative standard. Ha, the law is probably unconstitutional as a violation of separtion of powers in Florida.

    Generally, the elected representatives of Florida are pretty smart & sensible people. “S&S” I see no reason why this is an exception to the general rule. I do think oral evidence will do, and that they are being S&S. More so, I think the laws passed by each state are generally worthy of respect, even if there are differences of opinions, say even, on divorce, from state to state. Maybe some states may want to take your lead, on written evidence, but I do not know if any have. But that some have not, does not make it unconstitutional. I would not want to argue with you on this except to say,, there can be no success without “u”. :-)

    Yi-Ling (026709)

  265. me: P/S: Hint: Dom will say that this PVS

    you: Dom will say what Dom will say, not what Yi-Ling says he will say. If on this basis the patient is MCS, then Dom most definitely will not say the patient is PVS, not even as a joke with a smiley on it.

    Dom, it was NO joke. It was said in all seriousness, but with a smile than a with a grim look and clenched biting teeth. Well if there was a way to have one of those with a pondering sad look, with eye brows turned up and eyes and mouth turned down, I would have clicked it. It was by accident one day, I found I had produced a smiley as I had pressed something without knowing I would get a smiley. I then tried it the next time and found it required a colon then dash and a close bracket. If you know how to reproduce other appropriate faces, tell ….

    As to why it was NO joke, I put it to you, that YOU would say that PVS axe falls at (i) and (ii) and (iii) and (iv). That is the highest expression of PVS.

    (i) Is it MCS [whatever that means] , that carries the axe?
    (ii) Or it further down the line requiring PVS, as persistent vegetative state with infrequent utterances of words which suggest both context specific situations and no context specific situations, that carries the axe?
    (iii) Or it even further down the line requiring PVS, persistent vegetative state with infrequent utterances of words which suggest no context specific situations that carries the axe?
    (iv) Or is it even further down the line requiring PVS, persistent vegetative state with infrequent utterances of words which suggest context specific situations that carries the axe?
    I being a non medical person, but guided by my interpretation of Section 765.101 (12) Fla. Stat. – five (5) elements that are to be proven for a case of PVS :-
    • (a) a permanent and irreversible condition of unconsciousness; AND
    • (b) there is absence of voluntary action; AND
    • © there is absence of cognitive behavior of any kind; AND
    • (d) an inability to communicate purposefully with the environment; AND LASTLY,
    • (e) an inability to interact purposefully with the environment.

    would say that PVS would NOT fall at (i) nor at (ii) nor (iv). I would say that legally speaking according to Fla. Stat. PVS falls only at (iii).

    If you hold otherwise, from above, please explain. If you hold otherwise, then my analysis of your holding of PVS is incorrect and in which case, I would like to know
    (A)what is your holding of PVS, at which stage/s?
    (B)what is the general medical consensus of holding of PVS, at which stage/s?

    Yi-Ling (026709)

  266. Yi-Ling,

    Oral evidence will never do as C&C. Please refer to the post earlier where I describe structurally what are the various standards.

    Oral statements as C&C would be an affront to the first amendment and to contract law. A person is must be free to say nearly whatever they want without jeopardizing their legal standing in the future. Democracies rely on the interchange of ideas and debate. When a person wants to make up their mind and make a commitment, there must be an unequivical method of “going on the record”. Until then, they must be free to sound out others and to explore possibilities openly.

    Accepting oral statements as C&C is an affront to democracy itself.

    Paul Deignan (8745f5)

  267. Paul, c’mon. Under the right circumstances, oral statements can indeed satisfy the clear and convincing standard, or even proof beyond a reasonable doubt. Just because Terri Schiavo’s (alleged) oral statements didn’t appear to meet that standard, that doesn’t mean oral statements never can. Nor does it mean written ones always do, either. They could be forged, for example.

    Xrlq (e2795d)

  268. As to why it was NO joke, I put it to you, that YOU would say that PVS axe falls at … [multiple choice about lumberjacking implements deleted]

    Yi-Ling, you’ve lost me. You probably know what you’re trying to say, but this syntax is very difficult for me to follow. I’m unable to choose which words you want to put in my mouth. :-) (Yes, I really am in a good mood.)

    Perhaps to address several points, my holding on PVS is simply to follow the consensus enumerated in the AAN guidelines.

    Patients in a vegetative state show:
    • No evidence of awareness of self or environment and an inability to interact with others;
    • No evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli;
    • No evidence of language comprehension or expression;
    • Intermittent wakefulness manifested by the presence of sleep-wake cycles;
    • Sufficiently preserved hypothalamic and brainstem autonomic functions to permit survival with medical and nursing care;
    • Bowel and bladder incontinence; and
    • Variably preserved cranial nerve (pupillary, oculocephalic, corneal, vestibulo-ocular, gag) and spinal reflexes.
    The persistent vegetative state can be defined as a vegetative state present at 1 month after acute traumatic or nontraumatic brain injury… The permanent vegetative state means an irreversible state, a definition, as with all clinical diagnoses in medicine, based on probabilities, not absolutes. A PVS patient becomes permanently vegetative when the diagnosis of irreversibility can be established with a high degree of clinical certainty, ie, when the chance of regaining consciousness is exceedingly rare. …
    • PVS can be judged to be permanent 12 months after traumatic injury in adults and children. Special attention to signs of awareness should be devoted to children during the first year after traumatic injury.
    • PVS can be judged to be permanent for nontraumatic injury in adults and children after 3 months.

    I think these are reasonably in line with 765.101(12) of the Fla. statutes, which require 2 docs to diagnose PVS (765.306) but under some cirstances PVS is satisfied by 1 doc “in accordance with currently accepted medical standards” (765.404).

    Now I’ll just stipulate that when the AAN guideline calls for “no evidence of X,” but we see some evidence of X at a rate that is statistically indistinguishable from happening by chance, that’s as good as having “no evidence of X.” When we observe statistically significant, non-random evidence, that’s a deal breaker.

    If you have some question about fMRI of MCS and/or PVS, how about you go ahead and ask it and I’ll try to answer in my own words?

    Dom Rodavre (9b0bf1)

  269. Xrlq,

    There is a principle here at work. These statements are in regard to a person’s future status. Just think about it. You may be pondering things with your family which is your right. You have the right to speech–offer whatever ideas, perhaps temporarily assume one position or the other.

    If these statements were taken as binding you to a course of action, your speech is suppressed. Not only that, this would effectively mean that anyone can present themselves as hearing something that you have said for whatever desire they have–you could not refute it.

    No, it is an absolute minimal necessity that a signed written directive is required to go to the issue of a person’s future disposition. At that poin they make a commitment that they are aware is binding them to a future course of action.

    Anything less is breach of our democratic principles and a grave threat to our democratic form of government.

    Paul Deignan (794734)

  270. Nonsense. If “our democratic tradition” prohibited people from binding themselves verbally, oral contracts would be unheard of.

    Xrlq (c51d0d)

  271. Now I’ll just stipulate that when the AAN guideline calls for “no evidence of X,” but we see some evidence of X at a rate that is statistically indistinguishable from happening by chance, that’s as good as having “no evidence of X.” When we observe statistically significant, non-random evidence, that’s a deal breaker.

    That’s the crux of the PVS issue, between those who say she is PVS and those who say she is NOT PVS. The same set of facts is giving rise to 2 different interpretations. This is it !!!! The link from Father Rob and Dr Cheshire shows that “the same facts” is NOT PVS, while the “same facts” to you is PVS. Now I also gather that, AAN, also says the “same facts” is PVS. AAN is American Association of Neurologists?

    some evidence of X at a rate that is statistically indistinguishable from happening by chance, that’s as good as having “no evidence of X.”

    The point IS, “some evidence of X” is NOT being evaluated on “consciousness” or “degree of cognition” but on STATISTICS, based on “a rate that is statistically indistinguishable from happening by chance.”

    I have forgotten much of my pre University mathematics which deals with probabilities, etc, but, as a non medical person, it is possible for a person to lapse into non cognition mode and then come out to cognition mode, as it is a person, to lapse into coma, come out of coma, and then the process repeats itself. I would then not consider the rate of happenings of cognition, but the quality of the cognition, if the person did in those infrequent utterances, utter something that is context specific, however infrequent the times. I would gauge by quality than quantity.

    It is this quantitative aspect, that is worrisome, because, it means that minimal consiousness [ whatever that means] with infrequent times of context specific utterances that reflect the needed quality of cognition, are then, parcelled off as “according to statistics rate” the frequenty does not reach the level to be a deal breaker for it not to be PVS.

    However, on a broader perspective, I would have no objections to such a “deal breaker” if the Fla. Stat. was redrafted to make it clear that it is so intended per AAN guideline. The reason for it, is my concern over the resources of the indivudual, family and state, which can be harnessed or employed for other critical growth areas. That is then a value judgement, that is rightly that of the states’ legislatures to make. That aside, I do not see how, “statistic rate” enter Fla. Stat. when it is drafted as “any”, and thus one episode of context specific utterance would negate PVS finding.

    Yi-Ling (6922b4)

  272. Dom, did you notice the precise 12 hours gap between replies?

    Post 265 Comment by Yi-Ling — 4/27/2005 @ 8:16 am
    Post 268 Comment by Dom Rodavre — 4/27/2005 @ 8:16 pm :-)

    Yi-Ling (6922b4)

  273. Post 265 Comment by Yi-Ling — 4/27/2005 @ 8:16 am
    Post 268 Comment by Dom Rodavre — 4/27/2005 @ 8:16 pm

    Statistically, is this chance or a meeting of minds or cognition of the disparate issues between medicine and law? :-)

    When a doctor says the patient is insane, in a court of law, if the patient is charged with killing another man, and he pleads insanity as a defence, the legal definition of insanity defence, is narrower than the medical definition of insanity.

    Might not your’s and AAN’s medical definition of PVS be wider than Fla. Stat. legal and statutory definition of PVS? This :-) has eye brows curled up !

    Yi-Ling (6922b4)

  274. Xrlq,

    Oral contracts over property are not something I would count on in court.

    This is far more profound. You have the right against self-incrimination. You also have a right to free speech (what sort of a chilling effect would this have?). You also have the right not to have a certified document filed and updated every 10 seconds saying,

    “I want to live–I am only sepeculating with this potential neer do well over a hypothetical future situation. Please do not accept anything I have said to anyone as proof that I do not want to live just in case, heaven forbid, someone would profit from my demise should I ever become temporarily incapacitated or doze off.”

    Xrlq,

    The nonsense is all on the other side of the fence. There is no good argument to ever allow oral testimony as C&C of a person’s intent to die or live. It places a lean on that life which is unconstitutional in the extreme.

    You have not offered one nor has anyone else. You cannot because I could punch a hole in each one with a quick counterargument that begins, “What if …”

    Paul Deignan (794734)

  275. No evidence of awareness of self or environment and an inability to interact with others;
    • No evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli;
    • No evidence of language comprehension or expression;

    “No evidence” rule of AAN for item #1 is different for that of item #2 , in that, in # 2, “sustained” is employed. So is this the basis that infrequent and random utterances are not indicia of PVS for # 2. Is # 1 independent from # 2? Is “sustained” in # 2 applicable to “voluntary behavioral responses”, too or not applicable to it?

    By the way, did she have “bowel and bladder incontinence” and if yes, what kind of nursing and home care is required to attend to that?

    Sufficiently preserved hypothalamic and brainstem autonomic functions to permit survival with medical and nursing care

    Perchance would you know what would be the average cost of such medical and nursing care per week, per month, per year, and the number of such PVS patients, and who really picks up the tab on this “medical and nursing care” You would know that Schindlers became bankrupt.

    What is the underlying medical ethics behind the AAN rule vis a vis the Hippocratic Oath or modern versions of it?

    Is this “Now I’ll just stipulate that when the AAN guideline calls for “no evidence of X,” but we see some evidence of X at a rate that is statistically indistinguishable from happening by chance, that’s as good as having “no evidence of X.” When we observe statistically significant, non-random evidence, that’s a deal breaker.”
    a further refinement of the medical definition of PVS, by borrowing from mathematics some concepts and then applying them to medicine? Please draw no adverse inference from the questions, they are an attempt to get to the bottom of the PVS medical diagnosis and PVS legislation and judicial PVS fact finding, for future delibrations.

    Yi-Ling (edf363)

  276. The point IS, “some evidence of X” is NOT being evaluated on “consciousness” or “degree of cognition” but on STATISTICS, based on “a rate that is statistically indistinguishable from happening by chance.”… I would then not consider the rate of happenings of cognition, but the quality of the cognition, if the person did in those infrequent utterances, utter something that is context specific, however infrequent the times. I would gauge by quality than quantity.

    I would like to believe that “quality” plays a role as well. We have to be careful what we call single “event” and look to whether it comprises several smaller components, the coincidence of which can be assessed statistically.

    For instance suppose during a physical therapy session she says “hey, will you please stop that, it hurts,” and it takes another year before she says “look, I told you last time, stop it.” (We would hope these events were reliably witnessed.) We’d say that the chances of even one of those event having happened at random is virtually nil, even if neither one is ever repeated identically.

    On the other hand, suppose she says “ahhh” during the occasional PT session. The therapist sees many patients who react to sometimes-painful PT by saying “stop”, and so the therapist thinks she has effectively and appropriately said “stop” as well. But she also says “ahhh” a few times in different settings when no apparent stimulus is present, thus the probability of “ahhh” being an actual command to “stop” in a context of pain is likely to be low.

    Between those extrema are several swirling mixures of gray. Perhaps it comes down to, the pain makes your brain speak plainly that you’re sane.

    Dom Rodavre (556483)

  277. Yi-Ling, it occurs to me that we’re not discussing C&C evidence of Terri’s wishes anymore. We’re discussing legal definition ov PVS. Is that not better done on the “Schiavo Original Documents” page?

    Dom Rodavre (24489f)

  278. Oral contracts over property are not something I would count on in court.

    Me neither, but only because the Statute of Frauds says oral contracts for the sale of land are unenforceable. It has nothing to do with the Constitution.

    This is far more profound. You have the right against self-incrimination.

    No, you don’t. You have a privilege against being compelled to testify against your own penal interests. Anything you choose to say can and will be used against you.

    You also have a right to free speech (what sort of a chilling effect would this have?).

    None, if the statute is drafted properly, so as to require adequate witnesses, and more importantly, proof of testamentary intent (i.e. it’s not enough to tell three friends that it would suck to live on a respirator; you have to specifically tell each that you intend this statement to have the effect of a living will).

    “I want to live–I am only sepeculating with this potential neer do well over a hypothetical future situation. Please do not accept anything I have said to anyone as proof that I do not want to live just in case, heaven forbid, someone would profit from my demise should I ever become temporarily incapacitated or doze off.”

    See above regarding testamentary intent. By fixating on the written vs. oral side-issue, you overlook the equally chilling effect your own proposal could have on email. Every comment you or I have posted in this thread is in writing. Does that make it a valid substitute for a properly executed advance directive?

    Xrlq (c51d0d)

  279. Xrlq,

    You have a privilege against being compelled to testify against your own penal interests.

    This is more precise, but the point remains the same irregardless of my sloppy use of the language. Note that on the stand, a person can speak in ther own defense.

    I don’t come close to buying your argument that enough witnessess could be required to prevent a chilling effect. Remember, the person would not be able to refute any claim that is made against them no matter how false since they are incapacitated. Doctors have an interest in getting rid of these people, so does the government and the family. The only protection that the person has is the requirement that their word trump anyone else’s claims. For that proof in the form of a tangible, verifiable document is required.

    i.e. it’s not enough to tell three friends that it would suck to live on a respirator; you have to specifically tell each that you intend this statement to have the effect of a living will).

    And three people could lie like a rug and there is nothing that could be done about it. They would simply calibrate their statements to match whatever was required.

    Every comment you or I have posted in this thread is in writing. Does that make it a valid substitute for a properly executed advance directive?

    In fact, I would go a step further and demand that only one particular certified and sworn document could be used.

    Note that you have still not offered a means of overcoming my objection. Here is the question:

    How can you verify a person’s intent as something they are aware they are bound by without a written, sworn, and signed document or the equivalent (video tesitmony) in a way that does not work against their current rights?

    Paul Deignan (1c711e)

  280. Note that on the stand, a person can speak in ther own defense.

    A person on the stand can speak on anyone’s defense, including his own, or against anyone’s interests, including his own. If he lies in either case, he’s guilty of perjury. I’m not sure what your point is here.

    How can you verify a person’s intent as something they are aware they are bound by without a written, sworn, and signed document or the equivalent (video tesitmony) in a way that does not work against their current rights?

    The same way you can verify a person’s intent with a written document they may not have understood or even fully read, and which may well be forged.

    Video testimony is actually one of the examples I had in mind of oral statements that can be just as reliable as written ones, if not more so. I once had a secretary who could forge my signature well enough to convince me that I had signed documents I had never even seen. I don’t think she could have pulled off a video like that.

    Another advantage to oral testimony is that by forcing the individual to say everything out loud, you have a much better chance of finding out early on if there was some legalese mumbo jumbo in there he didn’t understand. Simply handing someone a document and saying “sign here” doesn’t do that.

    BTW, as regards oral vs. written contracts, there is no real rule beyond the fact that some things are in the Statute of Frauds and others aren’t. A contract to sell real estate must be in writing, but contracts to sell personal property generally need not be. A contract to employ someone for more than a year must be in writing, but a contract to employ someone for life need not be. The main thing is that the statements have to be made under the right conditions; you can’t just make up a “contract” out of the fact that somebody once said they might like to sell you something. That’s the real flaw with Florida’s right to die/kill law, not the fact that the advance directive can be oral, but that it need not have been intended as an advance directive at all.

    Xrlq (ffb240)

  281. Xrlq,

    The important thing about a written directive, signed and sworn on a particular document for that purpose is that the individual knows they are making a binding decision and they know that there is one unique document that they can corrected should they change their mind. This is the same as a will.

    Note that on the stand, a person can speak in ther own defense.

    A person on the stand can speak on anyone’s defense, including his own, or against anyone’s interests, including his own. If he lies in either case, he’s guilty of perjury. I’m not sure what your point is here.

    How do you prove that a person is lying about the intent of an other? Where is the proof that you can use to convict that person for lying? If there is no proof of refutability, then perjury laws mean nothing here. You are creating an obstacle for an incapacitated person’s defense in allowing oral statements. No one can rise and say, “He never would have said that–it is a lie” if the fabricator claims it was a private conversation. This is the importance of “going on the record”.

    Going on, I am stressing documentary evidence over hearsay (I’m calling it written v. oral). So I lump video documentation as “written” as opposed to he said she said as “oral”. That again is my sloppiness, but I thought it went to the point that we were discussing. (I am not so concerned yet with the precise implementation, but rather in stressing the need and principle involved). Once we agree on the principles that must be protected, it is an easy step to speculate on acceptable implementations.

    Paul Deignan (1c711e)

  282. The important thing about a written directive, signed and sworn on a particular document for that purpose is that the individual knows they are making a binding decision and they know that there is one unique document that they can corrected should they change their mind. This is the same as a will.

    Fair enough, but that’s an oral/written distinction; it’s the testamentary intent vs. no intent distinction I was addressing before. Videotaped evidence is one such example; a “will ceremony” before a probate lawyer and a couple of notaries is another. There may be other ways to accomplish the same.

    Xrlq (6c76c4)

  283. Yi-Ling, it occurs to me that we’re not discussing C&C evidence of Terri’s wishes anymore. We’re discussing legal definition ov PVS. Is that not better done on the “Schiavo Original Documents” page? [ 277]

    Dom, is it that you wish to address the issues of Post 275 on the next board? You are the information provider and pragmatically the choice of forum is yours. This board or the next.

    However, my legal contention is that, “facts” “findings of facts” are important in legal matters, for much of the 14th Amendment DP arguments raised here, are premised on the court’s erroneous findings of facts, not on PVS, but also on her wishes. Thus PVS and her wishes are issues of the same ranking, whether the level of correctness or otherwise is same or not.

    Proponents of the 14th Amendment premise their arguments [ though often unsaid] on their understanding the courts and not just trial court, erred in the finding of her wishes and PVS, and erred in uphol;ding these DUO findings.

    American Legal Realism also recognises that “facts” are important.

    However the choice is yours and I have posted the 275 and 277 at the next board, if that is your preference .

    Yi-Ling (04a418)

  284. For instance suppose during a physical therapy session she says “hey, will you please stop that, it hurts,” and it takes another year before she says “look, I told you last time, stop it.” (We would hope these events were reliably witnessed.) We’d say that the chances of even one of those event having happened at random is virtually nil, even if neither one is ever repeated identically.

    On the other hand, suppose she says “ahhh” during the occasional PT session. The therapist sees many patients who react to sometimes-painful PT by saying “stop”, and so the therapist thinks she has effectively and appropriately said “stop” as well. But she also says “ahhh” a few times in different settings when no apparent stimulus is present, thus the probability of “ahhh” being an actual command to “stop” in a context of pain is likely to be low.

    This is the DISTINCTION you draw, but would you relook at the Fla. Stat. on the statutory definition of PVS and reply IF the legislature did intend to draw the distinction you draw above?

    I was wondering IF they did NOT intend to draw the distinction you draw above and thus, they passed Terri’s Law I.

    There is really a difference in the definition of PVS to AAN and to state legislature, but the operative definition has to be that of the state legislature, unless they cite all the criteria given by AAN. is AAN American Association of Neurologists?

    I shall also repost this at next board if you wish to respond there than here.

    Yi-Ling (04a418)

  285. Fair enough, but that’s an oral/written distinction; it’s the testamentary intent vs. no intent distinction I was addressing before. Videotaped evidence is one such example; a “will ceremony” before a probate lawyer and a couple of notaries is another. There may be other ways to accomplish the same.

    Documentary evidence of documentary tapes, CDs or DVDs, is quite a high bar. The bar is really set high, as high as making a will.

    Pending Dom’s reverting on the numbers, if he does, my reasoned guess based on Schiavo’s numbers and Schindlers bankruptcies is that, it is costly, and whether this cost is partly /wholly privately borne, there is some cost to the state, I would lean towards a default position of removing life support. From that perspective, I would also lower the bar on c&c evidence, and not impose an arbitrary creature of “testamentary intent” akin to testamentary intent of wills and last testament. On the surface they seem the same, but beneath that, are different rivers.

    The river of last will and testament is to confer property of deceased on next generation or others with even duties or taxes paid in some cases.

    The river of c&c of oral declaration of advanced health directive eats into the pocket of the family and the state.

    I would say it is selfish of PVS patients to cut into the resources of their family and the state, unless they have their own resources to pay for nursing and medical care, which could be for many years or several decades. If the number of selfish people is small, that’s not a problem, but if the number is large, that is a problem.

    To then set the bar as documentary evidence of c&c evidence with probate lawyer and/or few notaries, is to deplete crucial resources, which could be used in other areas, unless one says there are non depletable resources, infinite resources, which there are NOT.

    Yi-Ling (04a418)

  286. Fair enough, but that’s an oral/written distinction; it’s the testamentary intent vs. no intent distinction I was addressing before.

    The very strength can be a weakness. It is strength that argues for a high bar of documentary evidence of PVS patient wishes. This strength is cloaked in 14th Amendment arguments and “testamentary intent” of patient as if “testament intent of advanced health care directive is akin to testamentary intent of wills dispoing of property. It becomes a weakness because this strength feeds on the resources of the family which could have otherwise been used for next and future generations, and it also feeds on the states’ resources which could otherwise have been used for other areas of growth for the people.

    The pacifist strength prevents taking up arms to defend. The person who respects all sentient life finds difficulty killing the insect or bugs that carry deadly germs or virus, and risks forfeting life.

    If the number of pacifists or such respecters of sentient life is small, diversity makes for an interesting world, and adds flavor and new dimensions to life, but if the numbers are big or if their principles are elevated to state principles, the danger is there….

    Yi-Ling (04a418)

  287. For avoidance of doubt, post 285, 286, critiques un-necesary high burden of requiring presence of a probate lawyer or few notaries at the time of the oral declaration. Unless, Fla. stat. expressly requires, the presence of a probate lawyer or a few notaries, then such statutory requirements would have to be given effect to. As nowhere does Fla. Stat. expressly require “probate lawyer” or a “few notaries” at time of the oral declarations, then such requirements are NOT legally necessary. They should not be considered in assessing c&c evidence of her wishes.

    To say they must be considered, and absence is no c&c evidence of her wish, is to impose a value judgement and go contrary to clear intent of Fla. Stat. of just what is her oral declarations.

    After all, dying declarations by the mere use of the word “declarations” never required a criminal lawyer or few notaries to be present :-)

    Yi-Ling (04a418)

  288. Pending Dom’s reverting on the numbers, if he does,

    Just a note to let you know that I’ve been busy lately. I’ll try to get back on the other questions but the cost figures you seek are definitely not my area of expertise, so that would have to come from elsewhere.

    Dom Rodavre (e4cfed)

  289. Dom, noted. Also about this fMRI, what I gather is that, if a fMRI is performed, the wave patterns are the same for a MCS as for a normal person, when they did the trial test on some people normal and MCS, as to their brain response, when told a story by someone close to the patient, normal/MCS. That is supposed to let us know that MCS are therefore close to or like normal people , at least in terms of their brain response as evinced by the brain pattern waves of fMRI. It thus seems to suggest that fMRI would show a distinction between a PVS and MCS. This is the question, you were asking me to ask you and I have so done it now, in my own words and by my non medical understanding. :-)

    Yi-Ling (04a418)

  290. I am not a lawyer, by any means, so please forgive me if I misinterpret anything said in this post. From what I can tell, you make a very good arguement that the court should have taken into consideration Ms Schiavo’s family’s request to re-evaluated the evidence for removing the feeding tube. However, it seems like this would only be applicable if the evidence present did not clearly indicate that leaving the feeding tube in would would give Schiavo any chance of any kind of a life. Medical records, a variety of different tests, and testimony by credible medical personnel all provided sound evidence in support of Schiavo’s husband’s decision that the feeding tube and hydration were futile and actually detrimental to the patient. I completely agree with Xrlq’s post stating “courts shouldn’t be allowing people to die while issues are still pending, unless it is clear that one of the litigants is just manufacturing new issue after new issue to keep them alive”. A persistent vegitative state is defined as the following:

    “Several other clinical findings are associated with poor outcomes. A systematic review of multiple published series noted that absent motor responses and absent pupillary reactions to light on the third day reliably identified patients with a very poor prognosis. Absent response to pain, absent pupillary light reflexes, and absent corneal reflexes 24 hours following cardiopulmonary resuscitation are similarly grave prognostic findings. In addition, myoclonic status epilepticus (bilaterally synchronous myoclonus in face, limbs, and axial musculature) is almost always associated with in-hospital death or poor outcome.”

    Based on the above definition (which can be found on the web-based medical site Up-To-Date), how did Terri’s doctor’s not provide clear evidence of her prognosis and current state of actually being brain-dead. Once the brain is dead, the person is considered clinically dead. With that said, wasn’t the court correct in dismissing the repeated attempts at injunctions to maintain the feeding tube by her family? Especially seeing as her family was “doctor shopping”, which patients tend to do when they are in denial about a serious condition, in order to find a medical specialist who would tell them what they wanted to hear.

    So I guess my question for the lawyer folk is this… Does the statute in the constitution pertaining to due process still apply when due process was already met?

    LRC (10ed8a)

  291. […] Judge Whittemore, some may recall, was the District Court judge that denied the initial injunction following Congress’ action in the Terri Schiavo case. […]

    An Army Lawyer :: Pat Down Searches At Bucs Games Unconstitutional :: July :: 2006 (2f634e)

  292. […] The due process argument in the Schiavo situation is, I think, fairly clear-cut. As I have argued, substantial authority (including dicta in Cruzan) suggests that, under the Due Process Clause of the Federal Constitution, cases like the Schiavo case must be decided according to the “clear and convincing evidence” standard. I believe that it was appropriate for Congress to provide jurisdiction to the federal courts to ensure that this federally mandated standard was properly applied. […]

    Patterico’s Pontifications » A Further Response to Prof. Reynolds (421107)

  293. Earned millions atplay 888 I loved every second.

    ron cohen (3ab0c3)


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