A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction
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:
- The Schindlers’ First Amended Complaint raising Claims One through Five and seeking a stay.
- The 11th Circuit’s order affirming (2-1) Judge Whittemore’s decision.
- The 11th Circuit’s order denying an en banc rehearing, with dissents from Judges Tjoflat and Wilson.
- The Schindlers’ Second Amended Verified Complaint, raising five new claims and seeking an injunction with respect to those claims. (Here is my initial post about that complaint.)
- 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.)
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.
Comment by Xrlq — 4/17/2005 @ 5:23 pm
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.
Comment by Justene — 4/17/2005 @ 6:01 pm
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?
Comment by antimedia — 4/17/2005 @ 6:42 pm
The Schiavo case revisited
Patterico provides an in-depth analysis of the legal issues in the Schiavo case and concludes that th…
Trackback by Media Lies — 4/17/2005 @ 6:48 pm
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.
Comment by Xrlq — 4/17/2005 @ 7:22 pm
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
Comment by Dafydd — 4/17/2005 @ 7:43 pm
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….
Trackback by damnum absque injuria — 4/17/2005 @ 8:10 pm
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?
Comment by Yi-Ling — 4/17/2005 @ 8:13 pm
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).
Comment by Roscoe — 4/17/2005 @ 8:24 pm
Well put Patterico. Really nicely done.
Comment by Joel B. — 4/17/2005 @ 9:11 pm
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.
Comment by Patterico — 4/17/2005 @ 9:16 pm
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
Comment by Dafydd — 4/18/2005 @ 2:47 am
[...] D in Philly on Schiavo Original Documents and TestimonyPaul Deignan on Gays in the Military
Pingback by Patterico's Pontifications » 2005 » April » 18 — 4/18/2005 @ 5:17 am
Why didn’t the parent’s lawyers plead this?
Comment by actus — 4/18/2005 @ 5:43 am
Why didn’t the parent’s lawyers plead this?
Jeez Louise, Actus. Why didn’t you read the post?
They did.
Comment by Patterico — 4/18/2005 @ 6:01 am
Dafydd,
You talk well through your hat. You summarized the argument precisely.
Comment by Patterico — 4/18/2005 @ 6:02 am
“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?
Comment by actus — 4/18/2005 @ 7:27 am
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.
Comment by Patterico — 4/18/2005 @ 7:30 am
“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.
Comment by actus — 4/18/2005 @ 7:53 am
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).
Comment by Roscoe — 4/18/2005 @ 8:30 am
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.”
Comment by Xrlq — 4/18/2005 @ 9:30 am
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).
Comment by Roscoe — 4/18/2005 @ 10:07 am
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.
Comment by Karl — 4/18/2005 @ 10:15 am
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.
Comment by Jay D. Homnick — 4/18/2005 @ 10:21 am
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?
Comment by Xrlq — 4/18/2005 @ 10:35 am
“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?
Comment by actus — 4/18/2005 @ 10:55 am
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.
Comment by Roscoe — 4/18/2005 @ 11:03 am
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?
Comment by Xrlq — 4/18/2005 @ 11:12 am
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…
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.]
Comment by Xrlq — 4/18/2005 @ 11:35 am
“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?
Comment by actus — 4/18/2005 @ 11:42 am
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.
Comment by Xrlq — 4/18/2005 @ 11:48 am
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….
Trackback by Physics Geek — 4/18/2005 @ 12:38 pm
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?
Comment by James B. Shearer — 4/18/2005 @ 1:07 pm
“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.
Comment by actus — 4/18/2005 @ 1:30 pm
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.
Comment by Xrlq — 4/18/2005 @ 1:41 pm
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.
Comment by Ben Pugh — 4/18/2005 @ 2:26 pm
“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
Comment by actus — 4/18/2005 @ 2:43 pm
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
Comment by Dafydd — 4/18/2005 @ 2:48 pm
Due Process Arguments in the Schiavo Case
Patterico has a lengthy and detailed anlaysis of the Constitutional issues in the Schiavo case….
Trackback by The Spoons Experience — 4/18/2005 @ 6:51 pm
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.
Comment by Matto Ichiban — 4/18/2005 @ 8:35 pm
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?
Comment by James B. Shearer — 4/19/2005 @ 8:55 am
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.
Comment by Paul Deignan — 4/19/2005 @ 9:34 am
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).
Comment by Roscoe — 4/19/2005 @ 9:43 am
That’s precisely my point exactly on due process.
No more or less so than in any of the other cases where courts have held such a standard is required.
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.
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.
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.
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.
Comment by Xrlq — 4/19/2005 @ 10:57 am
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
Comment by Dafydd — 4/19/2005 @ 4:07 pm
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
Comment by Dafydd — 4/19/2005 @ 4:23 pm
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.
Comment by Patterico — 4/19/2005 @ 5:18 pm
I commit this Patterico’s identified sin. That aside, ….
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.
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.
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.”
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.
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.
Comment by Yi-Ling — 4/19/2005 @ 10:21 pm
Fla. Stat. Chap. 756.Fla. Stat. Chap. 765.
Comment by Yi-Ling — 4/19/2005 @ 10:32 pm
(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
Comment by Yi-Ling — 4/20/2005 @ 4:50 am
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.
Comment by Xrlq — 4/20/2005 @ 9:04 am
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?
Comment by Yi-Ling — 4/20/2005 @ 9:52 am
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?
Comment by Yi-Ling — 4/20/2005 @ 10:13 am
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.
Comment by Xrlq — 4/20/2005 @ 10:58 am
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.
Comment by AngryLawyer — 4/20/2005 @ 1:28 pm
AngryMoron, you have no idea what you are talking about. Here’s a brief, nonexhaustive list of reasons:
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.
Comment by Xrlq — 4/20/2005 @ 2:30 pm
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.
Comment by AngryLawyer — 4/20/2005 @ 3:28 pm
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.
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?
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.
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?
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.
Comment by Xrlq — 4/20/2005 @ 5:18 pm
Xrlq, how does this argument depend on the act passed by congress?
Comment by James B. Shearer — 4/20/2005 @ 8:00 pm
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.
Comment by Xrlq — 4/20/2005 @ 9:24 pm
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
Comment by Dafydd — 4/20/2005 @ 10:43 pm
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.
Comment by Xrlq — 4/20/2005 @ 11:29 pm
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?
Comment by James B. Shearer — 4/21/2005 @ 9:10 am
Ahem… formerly top 10 school. Hehe.
Comment by The Angry Clam — 4/21/2005 @ 9:41 am
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.
Comment by Dom Rodavre — 4/21/2005 @ 10:10 am
I posted a reply at Original Documents & Testimony Schiavo that was deleted by operator of this board. Right & Freedom
Comment by Yi-Ling — 4/21/2005 @ 11:34 am