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Thursday, March 31, 2005
Time of Sorrow
This is a legal blog, but it most certainly, and sadly, is legal news to note that Terri has now passed. She is surely in a more peaceful place.

Schiavo News: Double Denials
Ok. A very quick break from the cert petition to give a summary of yesterday's decision by the entire Eleventh Circuit. In short, not just a three-judge panel but the entire court considered the Schindlers' appeal from Judge Whittemore's second decision rejecting their request to have Terri's feeding tube inserted. The court has 12 judges in active service, but a medical emergency forced Judge Pryor to be absent, so 11 judges voted.

Stepping back a second, recall that the Schindlers have been attempting to have Terri's feeding tube reinserted while the federal trial court considers their claims under the new law Congress passed last week. Judge Whittemore -- the trial judge -- appeared willing to do that, if the Schindlers could show they had a substantial likelihood of succeeding on any of those claims. He examined the amended counts of their complaint and found, in essence, that the claims were going to fail, and at a minimum a substantial likelihood of success could not be seen.

On appeal, eleven judges from the Eleventh Circuit issued this order, which affirmed Judge Whittemore's decision. We don't know exactly how the breakdown went, but we know a majority did not favor reversing the trial court.

We also know that Judge Birch believes Terri's Law II is unconstitutional. He wrote a concurrence stating the law violates the U.S. Constitution's separation of powers principles by undermining various long-standing judicial decision-making doctrines.

Two judges -- Judge Hull and Judge Carnes -- joined in a concurrence that may interest many people. They wrote that if the purpose of Terri's Law II was to require the federal courts to review the original trial proceedings to ensure sufficient evidence of Terri's wishes was presented, then the Florida decision will stand because such evidence was presented.

Finally, two judges -- Judge Tjoflat and Judge Wilson -- joined in a dissent. They did not argue that the Schindlers' claims had merit. Instead, they argued that the tube should be reinserted while the process of sorting out the ultimate merits of the Schindlers' claims is undertaken.

One last item: you may have heard that this decision was immediately brought to the attention of the U.S. Supreme Court, which again rejected a motion to stay all proceedings while a full appeal in the Supreme Court is pursued. The high court's order, typically terse, can be found here.

Almost Done...
... and it's really more like six cert petitions at once. I can't wait to get back here. Meanwhile, many thanks for stopping by.

Tuesday, March 29, 2005
Abstract Pause... Almost
I'm here, or somewhere... Working hard on a cert petition due by Friday. I'll post as soon as I can.

Monday, March 28, 2005
What's Left?
A few people have just asked me what's left to be said about all this. Well, there are a couple of rather important things.

One concerns living wills. I've heard a certain "powerful" television host say repeatedly that he's written his wishes down and that's the end of it for him, and had Terri done so it would have been the end of it for her, too. I'm going to explain why he's wrong. Someone should. May as well be little ol' me.

Another concerns what's become the biggest piece of misinformation concerning this case. I used to think that title was held by the myth Michael simply made the decision to pull the feeding tube. Now, after years of being in the headlines and weeks of dominating the nation's attention, this case has a new leading myth. I'll make my small effort to debunk it.

Finally, I intend to say a giant thanks to the thousands of you who had interesting discussions with me over the last two years, many in the last few weeks. I'm going to try to sum up the views I've heard and lay out what seems to be the prevailing points of view among people civil enough to engage in conversations about it all.

For those who are curious, I'm going to start getting back to other Florida law topics aside from the Schiavo case. I've done what I can to help people understand the law concerning that case. I do still have a couple more substantive posts that some folks may find insightful, but it's also time to pick up with interesting new case law and other developments.

Schiavo Thoughts: Mail Call
Some snippets from my incoming and outgoing email yesterday:

Comment/Question: "I'm not advocating for anything here, but I'm curious on an academic level if there has been any talk locally of prosecuting Michael Schiavo and the woman with whom he cohabits under Florida's 'Living in Open Adultery' statute?"

Response: Serious talk? No. That statute remains codified as Florida law, but I'm not aware of when it was last enforced, and the U.S. Supreme Court's decision in Lawrence v. Texas seems to signal that such laws are unconstitutional. Lawrence held unconstitutional a Texas sodomy law.

Comment/Question: "New state law: A mother or father are allowed to nourish their children. Simple to the point and constitutional."

Response: Constitutional? That's doubtful, at least in Florida. Florida's constitution contains an express right of privacy that empowers each person to choose his or her own medical fate, including whether to be kept alive by a feeding tube. A person's parents' desire to nourish cannot override that right. If Terri indeed expressed that she would not want to be kept alive in circumstances such as now exist, then what's happening here is that her wishes are being followed.

Comment/Question: "Was the issue ever raised on appeal that the judge had erroneously admitted the hearsay evidence? "

Response: It was never raised at trial, nor on appeal, nor in any proceeding ever in the case of which I'm aware. I suspect that's because every lawyer involved knew it was a frivolous argument. (See this prior post for a detailed explanation why that's true.)

Comment/Question: "If Florida law does place a burial arrangement decision with a spouse, do you know what FL law controls? Does it provide for a challenge based on estrangement?"

Response: Hmmm. Bunch of questions there. The Schindlers challenged Michael's plan to have her cremated, and the court rejected that challenge. For a great set of lessons on the current state of Florida law regarding how someone's body should be handled, check out this very recent decision from a Florida appellate court. The case involves a man whose will said he wished to be buried in a family plot in New York, but his wife was able to prove that after the will was executed he orally expressed different wishes about where he wanted to be buried. Lots of analogies to the situation here.

Comment/Question: "Is polygamy legal in Florida? Michael has a common law wife and Terri. Is that legal? How many years living together constitutes a common law wife by Florida law?"

Response: It's generally a third degree felony in Florida for someone married to one person to marry another. But marriages aren't entered in Florida by living with someone for some amount of time. There must be a ceremony and intent to marry.

Comment/Question: "If Michael can claim Terri wouldn't want to live like this and get her feeding tubes disconnected, why can't her parents, or someone, file for DIVORCE testifying there is no way she would remain married to an adulterer with 2 illegitimate children???"

Response: Divorce would not change Terri's wishes, which the court determined clearly indicated that she would not wish to be kept alive by medical treatment when there's no hope of recovery. Also, it wasn't just Michael who testified to Terri's statements about her wishes. Michael's brother testified to hearing her speak of them, too, and so did Michael's sister-in-law, who was also Terri's best friend.

Comment/Question: "Has an MRI or equivalent ever been done on Ms Schiavo’s head. I have heard that one was done and that the frontal lobes were 'Missing in action.' Then I read another columnist and it is stated that there have never been MRI”s or similar procedures performed on the Head. I should think this would be critical to understanding her condition."

Response: I believe one was done very early, but it wouldn't be very meaningful now since the degeneration took place afterwards. Later, when therapy was being aggressively pursued, Terri received an experimental brain implant. It didn't work, and it was never removed. If you've seen the famous CT scan picture, the implant is the shiny spot in the middle. Terri could not have an MRI without the implant first being removed. I suspect that's why no MRI was done when the issue of her condition was tried again in 2002 -- why put her through that surgery, when nothing suggested the CT scan was not accurate? I don't know that's why no one did an MRI in 2002, but it would make sense.

Comment/Question: "This May it will be sixty years since we liberated Germany from the tyranny of NAZI-ism. Nazis made the Nuremberg Laws so that NAZI judges made the decisions of who would live and who would die....they began with people who were incapacitated, then the old and infirm, then Gypsies and finally Jews. They said we are following the word of the Law and Germany is land of Laws...is this what America is now becoming? I never dreamed I would live to see our Country and our Judges emulate NAZI Germany!"

Response: Comparing the law applied here to the law in Nazi Germany is atrocious. If Terri said what the witnesses at the January 2000 trial said she said, then the result here is exactly what she wanted. In any event, unlike Nazi Germany, if you are unhappy with the law here, you can understand it and then work to improve it. The great experiment lives on.

Comment/Question: "Michael has been wanting Terri dead for years... He wants her put in the ground and forgot about to cover up his crime. Terri didnt have an eating disorder. Terri was slowly poisoned. He does not want that exposed, so get rid of the evidence."

Response: [I didn't respond. After two years of following this case, this is the first time someone tossed out poison.]

Sunday, March 27, 2005
Mail Call
Things seem to have calmed a bit. I just opened my email and, since last night, I have only 112 emails. As I answer them, I'm going to put together a sort of omnibus mail post for the blog. Expect to see it up later tonight.

... or maybe in the morning.

Schiavo Thoughts: Final Round
I finally got to read copies of the Schindlers' final motion for relief and the order denying that motion. You can read the motion here, courtesy of The Empire Journal, and you can read the order here, thanks to the folks at Terri's Fight.

I heard a national news network host yesterday say that, in his view, the judge just did not believe Ms. Weller. It's a shame the major media allow such commentary. The order says a number of things, and it does imply a credibility issue exists, but the order relied on two grounds to deny the motion, and neither had anything to do with credibility.

The order presented two bases for denying the motion. The first was waiver -- which essentially means the ground was forfeited by not raising it earlier. In this case, the "earlier" was just two days earlier, when the Schindlers argued that Dr. Cheshire had seen Terri and observed that she may not be in a PVS state. Apparently no one involved in that hearing said anything about this "new" evidence.

It helps to know that, just as the trial court said in this order, and as the Second District said in this order, the courts in this case have repeatedly allowed the Schindlers to violate the well established rule that all grounds to attack a judgment must be brought at a single time, not piecemeal. While the significance of Terri's life or death situation has led to this lapse in rule enforcement, the trial court found the violation here to be particularly troublesome, given all the circumstances. Still, the trial court said it would not deny the motion on this basis alone.

The actual reason the court denied the motion is that the evidence presented was consistent with the court's earlier findings regarding Terri's state. The vocalizations were single syllables and apparently were produced at the same time Ms. Weller took Terri's arms in her hands. The court found this to be consistent with the prior evidence and findings regarding the behavior of persons in a persistent vegetative state. Because of that consistency, the evidence was not sufficient to undermine the final judgment, assuming the affidavit is entirely credible.

So the host's comment was completely off the mark.

Saturday, March 26, 2005
Schiavo Thoughts: More On Independent Attorneys
It's halftime in the men's basketball game and I'm watching a national news channel discuss the Schiavo case with two guests -- a criminal defense attorney and a prosecutor. The host just asked, or really just said, that the reason Terri did not need a lawyer is because her husband served as guardian and he had a lawyer. One guest essentially agreed, pointing out that Florida law does not require the ward to have her own lawyer and suggesting the Florida legislature may want to reconsider this point.

I disagree. Michael's lawyer represented Michael, who took a very hard position regarding Terri's wishes. The Schindlers, on the other hand, took the opposite position, and they too had counsel. It was this dynamic -- adversaries with drastically different positions, each represented by counsel, and certainly one of them taking the position that Terri herself would take -- that eliminated the need for Terri to be represented by counsel.

As for the legislature considering the appointment of counsel, I will suggest that appointed counsel would be nothing but problematic. This is not a criminal case. In a criminal case, the defendant has a clear goal: avoid punishment. The state has the opposite goal: punish. There is nothing similar in a case like this. Imagine you are appointed counsel for Terri. What do you advocate? You cannot ask her what she would like to do, so you are forced to choose a side. How would you do that? If you choose the side she would not (or did not) support, then you are not at all advocating your client's interests. If you automatically advocate that she should be given all possible medical treatment, then you are really an advocate for the state, with its unceasing interest in prolonging life, and not an advocate for your client, who might not share that view under the circumstances.

When you factor in that the case already involves counsel who are taking opposite views on what the ward would want, it becomes apparent that a third attorney or set of attorneys would not only add nothing, it would likely distort the process. The whole purpose of the trial is to make the very determination that the ward's attorney would have to make before proceeding with the litigation.

Schiavo News: Final Motion Denied
Word is out that Judge Greer has denied the Schindlers' latest motion to vacate the judgment on Terri's wishes. I will post a copy of the order when I receive one.

Schiavo News: Federal Appeals Over
Local news in the Tampa Bay area has just reported the Schindlers will no longer seek relief in the federal appellate courts. I take that to mean they will not file a motion for rehearing en banc in the Eleventh Circuit. Nor will they turn again to the U.S. Supreme Court.

It would seem yesterday's motion filed with the state trial court is the last legal effort to restore Terri's feeding tube that is still pending in the courts.

Schiavo News: Updates
A quick recap of legal events in the past 24 hours:

When we last left this saga (i.e. the preceeding post), Judge Whittemore had denied the Schindlers' second request to require Terri's feeding tube to be reinserted. In his order, available here, Judge Whittemore concluded that the Schindlers failed to show a substantial likelihood of success on the five new claims they have added to their federal case.

Yesterday, the Schindlers immediately appealed that decision to the Eleventh Circuit, which in turn immediately affirmed the ruling in a 3-0 decision. You can read that decision here. I'll post about some of its interesting aspects at a later time. I have heard news reports that the Schindlers have announced an intent to ask for en banc (full court) review of the three-judge panel's decision.

The BIG news from yesterday concerned a new motion by the Schindlers filed with the trial court to vacate the original decision on Terri's wishes. According to news reports, the motion alleges that Barbara Weller, one of the Schindlers' attorneys, witnessed Terri last Friday trying to say that she wanted to live.

Now, this story first emerged last week when some Internet sites reported on an exchange between Barbara Weller and Terri. For an example, see this story from World Net Daily. The story reports Ms. Weller's account that, just before Terri's feeding tube was removed last Friday, Ms. Weller said to Terri, "You had better say you want to live or they will kill you. Just say you want to live." Reportedly, Terri responded by vocalizing a drawn out "IIIIIIIIII" and then "WAAAAAAAAAA," and this was witnessed by Terri's sister Suzanne and a third person.

So that story made it into some Internet-based news last Friday. What apparently did not happen, however, was an attempt to bring this incident to the attention of the trial judge before Terri's feeding tube was actually removed. Instead, it seems folks waited until yesterday to raise this incident -- seven days after Terri's feeding tube was disconnected, and by all accounts rather close to her death.

Judge Greer held an emergency hearing on the motion last night, and he reportedly stated he would rule by noon today.

I have looked online for a copy of the motion but have not found one. That's unusual, given the Schindlers' supporters' history of making the parents' filings available online. The Terri's Fight site does have the text, but not copies, of Barbara Weller's and Suzanne Vitadamo's affidavits. You can read those texts, respectively, here and here. The text of Ms. Weller's affidavit says she promised Terri she would tell the world Terri tried to say, "I want to live."

Now, keeping in mind that I have not seen the motion or the actual affidavits, I suggest that this is a very troubling turn of events. We've all learned about persisent vegetative states, and it seems at least possible that Terri simply vocalized the sort of random, empty vocalizations that physicians agree PVS people make, and that persons can interpret those vocalizations to represent things they want to hear. Is it also possible that this was speech?

This strikes me as heart-wrenching. I will confess, my own principles regarding candor to the judiciary make me very inclined to believe any attorney who approaches a court and says, as an officer of the court, I witnessed such and such event. Lawyers are just supposed to tell courts the truth. But can persons untrained in this area be qualified to interpret such vocalizations? What meaning should be given to the seven-day delay in bringing this to the court's attention? Perhaps most significantly, is there any medically acceptable way to accept such vocalizations as what they are alleged to be in light of the CT scans that both sides acknowledge show Terri's cerebral cortex was entirely or almost entirely degenerated nearly 10 years ago? Keep in mind that, as best I know, even the neurologists who have observed videos of Terri and recently concluded there is a possibility she is not PVS have not addressed the documented cerebral degeneration.

I suppose we'll know soon.

Friday, March 25, 2005
Schiavo News: Renewed Motion Denied
Word is out that Judge Whittemore has denied the Schindlers' renewed request to reinsert Terri's feeding tube while their federal claims are litigated. You can read the order here.

Given the history of this litigation, it seems inevitable there will be a nearly instantaneous appeal to the Eleventh Circuit and, if that is unsuccessful, to the U.S. Supreme Court. If this route fails for the Schindlers, it appears to me that every possible legal option will have been exhausted.

Schiavo News: Today's Congressional Hearing
Remember the congressional subpoenas requiring Michael, Terri, and Terri's caregivers to appear at a congressional hearing to be held today at the Hospice where Terri stays? The Orlando Sentinel reports here that the hearing has now been postponed. No word on to when...

Schiavo Thoughts: Hearsay
Yesterday, I saw on the news a protester carrying a sign that asked, "SINCE WHEN IS HEARSAY ADMISSIBLE?" I wonder how often protests involve rules of evidence.

I also heard hosts on news shows of three different networks express bewilderment at how the trial court could have relied on hearsay to determine Terri's wishes.

If you've read the trial court's original decision regarding Terri's wishes, then you know the court considered five persons' testimony of what Terri supposedly said to them about what she wanted. That's the supposedly inadmissible hearsay. Some say it shouldn't have been admitted. Others say it can't amount to clear and convincing evidence. "It's not in writing!" they say, as if writings aren't hearsay, or that a writing would eliminate any controversy. (More on that oft-repeated fallacy in a later post.)

I've addressed this issue countless times in emails, but the email flood has gotten too large in the last couple days to respond to each one, and this issue continues to bother people. It doesn't help that the media haven't figured it out. I wish they would. They're supposed to be doing a public service.

So I'll do what I can to clear this up on the blog. Someone tell the news folks.

Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind. You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.

Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.

In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:

A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:

1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.
The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:

We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.

Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.
(all emphasis added).

I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.

An assertion that the ward made a particular statement may certainly be challenged as unreliable -- that the ward never said it -- but there is no question that evidence of the ward's oral statements is admissible evidence, or that oral statements may constitute clear and convincing evidence. That's the law.

Schiavo News: DCF Denied
It appears that after Judge Greer denied the effort by the Department of Children and Families to seize Terri to protect her from "abuse" by the judiciary, DCF filed a motion for immediate relief with the Second District, which said no, and then with the Florida Supreme Court, which said it had no jurisdiction to address the issue.

You can read the Florida high court's order here and a set of lower court orders here. Appellate folks may wish to check out DCF's petition, available here, to see the efforts DCF made to suggest jurisdiction exists.

Thursday, March 24, 2005
Schiavo News: Another Hearing
It seems the Schindlers have now filed a Second Amended Complaint in federal court. It's available here. The new complaint adds five claims to those that were originally raised. Count X is the truly interesting one. It alleges that Terri is being denied her right to life in violation of the Fourteenth Amendment because removing her feeding tube is contrary to her wish to live. That claim essentially says that the original trial reached the wrong result.

Based on the newly pled claims, the Schindlers have also filed a new motion for injunctive relief, asking the court to require the feeding tube reinserted while the claims are litigated.

Judge Whittemore entered an order today setting an aggressive briefing and hearing schedule. You can read the order here. He asked the parties to file legal memoranda addressing the injunction request with respect to count X -- for the Schindlers to do so by 3 pm and for Michael to respond by 5 pm. The hearing will be tonight at 6 pm.

This latest effort to have Terri's feeding tube reinserted is once again rocketing through the system. Count X, though, presents a host of issues. It appears to ask the federal court to decide anew Terri's wishes, and that opens the door to the issue of exactly what "Terri's Law II" requires the federal courts to do.

The pertinent portion of the new law reads as follows:

[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.
I've seen a lot of news folks and talk show hosts over the last couple of days wondering what it means for the court to make a "de novo" determination. I did not come away with a firm conviction they have much experience with this term, though it is a rather common term in appellate practice.

De novo review is a common type of review in which the lower court's decision is reexamined in its entirety. No deference is paid to the lower court's conclusion, and the appellate court decides for itself whether it reaches the same conclusion the lower court reached. Importantly, though, in a de novo review, the appellate court looks only to the record produced below to make its decision. The appellate court does not accept new evidence. The court can review transcripts, exhibits, and whatever else was before the lower court.

Not accepting new evidence is what distinguishes de novo review from a de novo trial. A de novo trial is essentially a do-over. Whatever the issue was, it is relitigated entirely. Witnesses can testify, new evidence can be offered.

With that background, let's look at the statute. The key language of the new law allows the federal district court to hear "de novo any claim of a violation of any right" Terri has under federal law. So there has to be a claim someone has violated Terri's federal rights. Count X -- the count Judge Whittemore is focusing on tonight -- alleges that the defendants are violating Terri's rights by depriving her of life when she wishes to remain alive.

At this point, if I have followed things correctly, there is a disagreement over how the district court is supposed to go about determining whether Terri's right to life has been violated. One argument is that the court is required to hold a new trial on the whole issue of Terri's wishes. That would be a de novo trial. Another argument is that the district court is simply required to review the record and ensure that sufficient evidence exists that Terri would wish the tube removed, precluding a Fourteenth Amendment violation. That would be de novo review.

So which is it? I do not think the new law is clear. I will suggest one reason that favors the result being a de novo review: Throughout the congressional debates, and right through last night's talk show circuit, leaders supporting the Schindlers' cause have maintained that what they intended to do with this law is to make sure Terri has the same right of review in the federal courts that mass murderers have before they are executed. Mass murderers, or any criminal in state custody, do not get a whole new trial in federal court. Instead, they get a fresh review of whether the state trial proceedings complied with federal law. If the new law gives the Schindlers the right to a whole new trial -- with new testimony from experts and witnesses -- then it will not be anything like the review that criminals in state prison receive.

Now, keep in mind that the federal case here is not at the point of having the full de novo hearing called for by the new law, whatever kind of hearing that is. At this point, the Schindlers are seeking injunctive relief to require Terri's feeding tube to be restored. Their burden is, at this point, to demonstrate a substantial likelihood of success when the de novo hearing is actually held. No matter how Judge Wittemore views the de novo hearing that the law requires, meeting this burden will be a complicated task for the Schindlers.

One thing is fairly certain: if the media folks covering this story have had trouble understanding or explaining the issues thus far in the case, they are going to be in a bit more trouble now.

Schiavo News: DCF Renewed Motion Denied... ?
Word is out that Judge Greer may have denied the renewed effort by the Department of Children and Families to intervene in the case and take Terri into protective custody.

I'll post the written order when I get a copy.

You can read the motion here and the supporting affidavit here.

Schiavo News: U.S. Supreme Court Denies Relief
The very short, very typical denial is available here.

Schiavo News: Stay Request, Amended Complaint
We know the U.S. Supreme Court is considering an appeal to overrule Judge Whittemore's denial of an injunction that would require Terri's feeding tube to be reinserted. You can read that request here.

If the high court denies relief, will that be the end of the injunction issue?

Perhaps not. The injunction motion was denied based on conclusions the Schindlers failed to show a substantial likelihood of success on their five federal claims. But now the Schindlers have filed an amended complaint, with four additional claims. I've posted the amended complaint here.

No word yet on whether another motion for injunctive relief has been filed with Judge Whittemore.

Judging Courage
I'm disturbed. I've just finished watching a round of television programs where Judge Greer was once again assailed as lawless, power-grabbing, and out of control. On a mission to kill, it's said.

This is horribly difficult to watch. I cannot help but think that well meaning, honest Americans are home watching these programs, thinking there must be some truth behind the repeated assertions that a single judge or two have turned the justice system upside down. The public deserves better.

Florida law told Judge Greer what he had to do here. Once fate chose him as the judge in the case, he was responsible for following the law laid out by both the Florida Supreme Court and the Florida Legislature, all of which said that where those close to the incapacitated person cannot agree on what the ward would choose to do, then the court should resolve the matter.

Judge Greer is a Republican and a Southern Baptist. No doubt he has his own views about what he thinks he would do, or what he thinks might be in Terri's best interests. But he was charged with deciding only what Terri would do. He found the evidence presented at trial clear and convincing that Terri would choose not to have her life prolonged by the affirmative intervention of modern medicine. Three appellate judges unanimously affirmed that decision.

I receive email after email telling me that no judge has the authority to end someone's life. That life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person's wishes. That oral evidence can never be clear and convincing. That removing "life support" is okay, but removing a feeding tube is barbaric and unacceptable. Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer's power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created.

I continue to emphasize that I have no opinion on whether the trial judge reached the result Terri would truly want. I did not attend the trial, and having not seen the witnesses and heard them testify, experience has taught me that I am insufficiently informed to second-guess the decision -- no matter how many facts I learn about the case. I do know that a decision was made. I also know that the judicial system offers the checks necessary to ensure that the law has been properly followed. Judge Greer is part of that system, and he operated within it to perform his required role. Those who condemn him, and the judiciary that has thus far upheld his decisions, do not know what they do.

Wednesday, March 23, 2005
DCF Motion Denied... ?
Word is out that the Department of Children and Families filed an emergency motion with Judge Greer, asking for permission to take Terri into protective custody. Word is also out that Judge Greer has held a hearing and denied the motion.

(and for those paying attention, yes, I'm chatting right now...)

UPDATE: DCF has posted its motion here and the supporting affidavit here.

SECOND UPDATE: While it appears Judge Greer rejected DCF's effort to intervene and seize Terri, that remains a bit unclear. Some news agencies are reporting that Judge Greer will issue a written order by noon tomorrow.

Still Chatty
I've been asked to chat online again with Court TV at 5:30, to talk about today's events. Tune in if you'd like.

Schiavo News
21-18. That's the vote by which the Florida Senate just voted down the latest effort to change the law and cause Terri's feeding tube to be reinserted.

Schiavo News
A few quick updates.

First, word is circulating that the executive branch is considering taking Terri into protective custody based on a Florida statute that authorizes the Department of Children and Families to do so where "a vulnerable adult is being abused, neglected, or exploited and is in need of protective services." The Palm Beach Post has a report on this consideration here.

Were that to happen -- were the executive to take a ward of the court into custody on grounds the ward is being abused at the court's direction -- it would be utterly, amazingly extraordinary.

In other news, apparently the Florida Senate is considering and close to passing a new law. Terri's Law III, I suppose.

Finally, just an appellate procedure note. ABC News has a story here stating that the Eleventh Circuit voted 10-2 against granting rehearing en banc. That's not necessarily true. We know a majority did not vote to grant full review, and two judges authored written dissents from that decision. We do not know the actual vote. It could have been 10-2, or 6-6, or anything inbetween.

Eleventh Circuit: Rehearing En Banc DENIED
The Eleventh Circuit has denied the Schindlers' request to have all judges of the court rehear their appeal. The circuit court's site seems to be a bit busy, so perhaps I can take two or three hits off their hands by posting the order here.

As usual, the order does not reveal the result of the court's internal poll, but Judge Tjoflat and Judge Wilson authored written dissents.

Schiavo Thoughts: Feeding Tubes
Before I post about this morning's ruling from the Eleventh Circuit, which you can read here, I'm going to offer some thoughts on an issue that has been the subject of countless emails I've received: feeding tubes.

Some people believe that feeding tubes are different from ventilators and other machines that keep us breathing, or machines that make our hearts beat. Some people just seem uncomfortable that removing those other devices leads to an expeditious death, whereas removing or declining to insert a feeding tube -- when a patient cannot otherwise ingest food and water -- leads to a slow death. Some assume that death is painful.

I don't want to comment on the morality surrounding feeding tubes and their use or nonuse. This is a legal blog, so I'm going to offer a few legal observations in this area.

First, a Florida law enacted in 1999 makes it clear that the "life-prolonging procedures" a person may refuse include "artifically provided sustenance and hydration." This point is made on the Info Page I created to help explain the law at issue here.

But numerous people have pointed out that this law was passed by the Florida Legislature and signed by Governor Bush only in 1999 -- years after Terri's collapse and even longer after Terri made whatever statements she made about such things. They contend that this 1999 law shouldn't apply to Terri.

Let's take a step back. Statutes are one form of law in Florida, but there is another form of law that's higher: the Florida Constitution. In 1980, Florida's citizens amended Florida's constitution to add a right of privacy to Floridians' fundamental rights. The Florida Supreme Court addressed this right in the 1990 case In re Browning. Florida's high court determined that the constitutional right of privacy includes the right to decline any medical treatment, including the use of a feeding tube. The court said:

Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.
* * *

We see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, life-sustaining, or otherwise.
* * *

Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. We agree and find no significant legal distinction between these artificial means of life-support.
(emphasis added) (citations omitted).

So, as explained by the Florida Supreme Court in 1990, the right to decline medical treatment -- including use of a feeding tube -- has been the law of Florida since no later than 1980. Under the Florida Constitution, feeding tubes are medical treatment that may be refused. What the statutes say on this point cannot overcome the rights conferred by the Constitution.

As many know, the federal constitution does not have an express right of privacy, but the federal courts have found many privacy-like interests to be liberty and due process interests protected by the federal constitution. When the U.S. Supreme Court decided Cruzan v. Missouri in 1990, Justice Sandra Day O'Connor authored a concurring opinion discussing Nancy Cruzan's federal right to decline use of a feeding tube. Justice O'Connor explained:

Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
(emphasis added).

I hope this helps clear up what the law is in this area.

Eleventh Circuit: AFFIRMED
Early this morning, the Eleventh Circuit affirmed Judge Whittemore's decision not to restore Terri's feeding tube. The decision was not unanimous. Judge Wilson dissented.

You can read the decision here.

I'll have extended thoughts on this later this morning.

Tuesday, March 22, 2005
Schiavo Thoughts: Judge Whittemore's Order Explained
I previously posted Judge Whittemore's order, and it's here.

In short, the order concludes that the Schindlers have identified no violation of Terri's constitutional rights. For those looking for more information, here's my extended summary:

Judge Whittemore observed that the Schindlers are seeking a temporary injunction -- one mandating the reinsertion of the feeding tube. There are several requirements that must be met to obtain a temporary injunction. The court found the requirements applicable here to be met except the most important one: a showing of a substantial case on the merits of the Schindlers' claims. In other words, this comes down to whether the Schindlers' arguments have any merit.

Judge Whittemore individually examined the five claims asserted in the complaint the Schindlers filed yesterday. You can read that complaint here.

Count I of the complaint alleges that Terri was denied due process when Judge Greer made the decision, following a trial, on what Terri would want. Judge Whittemore found no due process violation. He ruled:

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.

Count II of the complaint alleges that Terri was denied due process when Judge Greer failed to appoint a guardian ad litem or an "independent" attorney for Terri and failed to meet Terri in person. Judge Whittemore found due process (including Florida's statutes) did not require the trial judge to meet Terri and that a guardian ad litem was appointed and testified at the trial on Terri's wishes. Regarding the lack of an attorney just for Terri, Judge Whittemore found:

Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....

[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.
Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.

Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.

These rulings appear to be decisions on the merits of the Schindlers' complaint, not just preliminary views that the Schindlers may not be able to prove their claims.

Once again, Judge Greer's decisions -- and the procedures required by Florida's statutes and Florida's judiciary -- have been upheld. Once again.

Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.

Schiavo News: Judge Whittemore's Order
I've posted Judge Whittemore's order here.

Schiavo Thoughts
Many folks are already asking me about appellate options. I have not seen Judge Whittemore's order yet, but I feel fairly safe in concluding that, whatever it says, if the result is that the tube will not be reinserted, Terri's parents will be able to appeal immediately to the Eleventh Circuit. If the Eleventh Circuit denies relief, the Schindlers could seek immediate relief from the U.S. Supreme Court.

We'll know more soon.

Local news in the Tampa Bay area is reporting that Judge Whittemore has denied the request to reinsert Terri's feeding tube. As you might expect, the legal basis for the ruling is not yet clear.

Further news reports say the order will be available around 9, and indications are it is a final order -- that the judge may have ruled not only on the injunction issue regarding the feeding tube but the merits of the Schindlers' case. We'll see.

More to follow...

Monday, March 21, 2005
I have been asked by Court TV to participate in an online chat on the Schiavo case at 5:30 pm. It'll be here if you're interested in joining the session.

Cert Denied In Judge Pryor Recess Appointment Challenge
Some of you may recall this prior post, which discussed a surprisingly vigorous effort to invalidate Judge Pryor's recess appointment to the Eleventh Circuit.

In Evans v. Stephens, an en banc but divided circuit court rejected that effort. Today, the U.S. Supreme Court denied a petition for certiorari in the case.

You can read the high court's order, along with Justice Stevens's opinion relating to the order, here. Interestingly, Justice Stevens suggests that the validity of the recess appointment may yet be reached if presented in a different context.

In Other News...
I've posted so much on the Schiavo saga that I've ignored last week's fun cases. Need to get to them. And, looking down the page a bit, I hope at least some of you who stop by here are making it to the cracked windshields cases post and other fun posts from last week. Boy, they got buried fast under this avalanche of Schiavo information.

Schiavo News
What I've heard is that the Schindlers filed a new petition overnight, along with a request that the feeding tube be restored.

The judge assigned the case is Judge Whittemore in Tampa. Judge Whittemore has scheduled a hearing for 3PM today to discuss the issues presented by the case, including the request for injunctive relief regarding the feeding tube.

The AP is reporting here that the Schindlers also filed a civil suit over the weekend, alleging civil rights violations by Michael Schiavo, Judge Greer, and the hospice where Terri has stayed.

UPDATE: It appears the suit "also filed" over the weekend is not a separate suit and that there is just one new federal district court case.

Schiavo Thoughts: Terri's Law II, Constitutional Concerns
The preceding post discussed what I'm going to call Terri's Law II, which is probably being signed into law by President Bush right about now.

This post discusses the constitutionality of the law. I'm not going to come out and call it either way, but I will talk about the issues. They're interesting.

Let's start with how strongly the law's constitutionality will be challenged. It's possible that Michael Schiavo will bring a constitutional challenge immediately and ask the court not to proceed with the merits of the action until the challenge to the law itself is resolved. It's also possible that Michael will ask the court to consider a constitutional challenge and allow the merits issues to go forward as well.

The first option is more likely to be recommended by Michael's counsel. The second option is more directed at the court of public opinion and may be favored by Michael.

So what are the possible constitutional challenges? I'm going to focus on two.

I've already seen much talk of the law being an unconstitional bill of attainder. Bills of attainder are prohibited by Article I, Section 9 of the federal constitution. A bill of attainder is generally a law that punishes a person (or a class of persons) without a trial. The classic form of a bill of attainder sentenced a person to prison or death.

Is Terri's Law II an unlawful bill of attainder? Well, the one person angle is easy to spot, bringing this challenge quickly to mind, but the other aspects are less clear. Is Terri being punished? It's arguable that her constitutional right to privacy is being negatively impacted by forcing her to receive medical care that a court has determined she would not want. But then the "punishment" here is to have a court review that very determination to ensure her rights have been protected.

The argument likely to get a lot of attention is an equal protection challenge. Simply put, the government is required to treat similarly situated people in the same manner unless a good enough reason exists not to do so. What constitutes a good enough reason in a given case depends on the type of discrimination involved.

If the discrimination implicates a fundamental right, then the only reasons good enough to permit the difference in treatment are the very few that advance compelling government interests by the least intrusive means possible. Racial and religious discrimination, for instance, require this sort of strict scrutiny.

Where no fundamental right is involved, courts generally use what's called rational basis scrutiny, meaning that a good enough reason is anything reasonable, not arbitrary.

Here, it is arguable that Terri's constitutional right to privacy -- specifically, the right to reject unwanted medical treatment -- is implicated. If so, that could be found to trigger the strict scrutiny analysis.

Whether it's strict or rational basis scrutiny that's utilized, the question will be if Congress had a good enough reason to pass this law affecting only Terri and her parents, and not anyone else similarly situated. If this challenge is raised, I look forward to seeing the arguments.

Tonight I watched the House debate passing the federal version of Terri's Law. It passed. The Senate previously approved it, and the President is expected to sign it during the night tonight.

Two thoughts come to mind. One, this is truly historic. Representatives, senators, and our President all returned to Washington for this specific event. Two, we have more fascinating steps ahead.

The new law's text -- available here -- provides that a particular federal district court in Florida has jurisdiction to review any claimed violation of Terri's rights under federal law. Parties to the state court proceedings have standing to initiate the challenge. That means the Schindlers.

Throughout this saga, I've tried to provide insights into the legal process at work. That's going to continue. Here are my initial thoughts on what's about to happen, though for the moment I'm not going to address arguments the new law is itself unconstitutional.

First, a case is about to be opened in the Middle District of Florida. But wait -- there's already a case opened. The Schindlers filed a petition in federal court on Friday. Judge Moody dismissed it immediately for lack of jurisdiction. You can read the petition here, and you can read Judge Moody's dismissal order here. My understanding is that the Schindlers have appealed that ruling to the Eleventh Circuit, keeping the case alive. It's possible that the Schindlers will immediately notify the Eleventh Circuit of the new law and that the appellate court will immediately return the case to Judge Moody for further proceedings.

In any event, some judge in the Middle District is going to get this case in the morning. If necessary, the Schindlers could just re-file the petition they filed on Friday, or something rather close to it.

Will the feeding tube be reinserted? Most likely the federal judge assigned the case will order the Florida court's termination of support order stayed and the tube reinserted, pending resolution of the federal case.

An important consideration at this point is exactly what is going to be litigated in the federal forum. There is not going to be a simple re-trial of the issues of Terri's wishes or her condition. The Schindlers will be able to argue only that the proceedings in the state courts violated Terri's federal rights.

Based on the habeas petition filed Friday, it seems the Schindlers are going to raise three principal issues:

(1) That the trial judge denied Terri due process by making the decision regarding what she would wish to do in these circumstances. I'm not sure I've read this correctly, but it seems the Schindlers are arguing that someone else -- a "neutral" person -- should have been appointed Terri's surrogate and been allowed to decide what Terri would do.

(2) That the trial judge violated Terri's right to due process by not appointing an attorney and/or a guardian ad litem for Terri for the original trial on Terri's wishes.

(3) That the trial judge violated Terri's right to equal protection by not permitting her parents to subject her to new medical tests to show her condition. The Schindlers compare Terri's situation to a convicted criminal who's been allowed to utilize DNA tests that were not available at the time of trial.

It is possible that the federal judge will be inclined to rule on these issues as a matter of law. It is also possible that the judge will hold an evidentiary hearing and perhaps will allow the Schindlers to conduct some factual discovery beforehand. Expect the judge to hold a conference or hearing immediately that addresses the feeding tube, whether standard or accelerated proceedings will be utilized, and due dates for initial written submissions.

Sunday, March 20, 2005
Email Out
I had no idea my host for Abstract Appeal has a limit on how many emails I can send per day, but apparently I've just reached the limit. No more responses from me today, folks.

Abstract Video
I can't believe how many of you saw me on MSNBC the other night. Their folks contacted me Friday and asked if I would speak about blogging the case and the law involved. I said sure, so long as I did not need to take a side.

Amazingly, The Political Teen has the segment's video available here. Thanks, Ian.

Schiavo News: Terri's Law II? Terri's Other Law?
I'm aware of reports, like this one from MSNBC, on the compromise being negotiated in Washington.

I'm very curious about the language that will be used if something actually passes. I'm going to hold off on commenting until we have something certain.

At the moment, though, this is looking a bit like a repeat of October 2003, when the Florida legislature acted after Terri's tube was removed for the second time.

Schiavo News: Local Roundup
Checking out today's local coverage of the Schiavo saga:

The St. Pete Times has a story here on the extraordinary events taking place in Washington, a story here on the Republicans in Tallahassee who refused to change Florida's law for everyone because of public perception regarding one case, and a story here about Michael Schiavo's invitation to President Bush: "Come talk to me. Meet my wife. Talk to my wife and see if you get an answer. Ask her to lift her arm to shake your hand. She won't do it."
Today's Tampa Tribune has this story on events up in Washington as Congress tries to craft a new law to keep Terri's feeding tube in place, and this story on how the video snippets of Terri being played around the world are misleading regarding Terri's condition.

Finally, while this isn't local, KnightRidder on Friday published this interesting inteview with Dr. Jay Wolfson, who was appointed as Terri's guardian ad litem at the end of 2003 and who in December 2003 authored this report to Governor Bush on Terri's condition.

Saturday, March 19, 2005
Blogging Normal
Long time readers may have noticed the absence of by-lines, time stamps, and permanent links in the posts over the last couple days. Good eye. The short of it is that Blogger was down and I was posting by just editing the html code of the main page. Blogger's now back, and I've reposted those jiffy-posts the usual way.

That's part of why I wrote the code for this site myself, thanks to a Dummies book and a lot of patience -- I didn't want to be out of luck if something went down.

Schiavo News: Second District Rejects Congressional Petition, Too
Late yesterday, the Second District denied a congressional motion to halt the removal of Terri's feeding tube on its merits. The text of the order reads as follows:

This court has received a motion from the Committee on Government Reform of the U.S. House of Representatives. The motion is not filed within any appellate proceeding, nor is it filed with either an original petition or a notice of appeal. This court has jurisdiction only to the extent that the motion may seek a constitutional writ of stay under the "all writs" power given to this court by Article V, § 4(b)(3) of the Florida Constitution.

The motion has been filed using the style of a trial court adversary proceeding within the Guardianship of Theresa Marie Schiavo. The motion essentially asks this court to stay a state court judgment in order to permit a hearing of the Committee. With all due respect to the Committee, it has cited no law that convinces us that it has the power to overrule a state court final judgment or that this court has either the jurisdiction or obligation to stay a final judgment based upon its issuance of a subpoena.

Accordingly, the motion is denied.

With this decision, the Committee on Government Reform has failed in its efforts to halt the removal of Terri's feeding tube, or to require the Florida courts to order the tube immediately reinserted. The Committee's petition threatened to hold various persons in contempt of Congress if a stay was not granted, but the Florida courts are apparently not persuaded that Congress has the authority to interrupt this process.

I suppose we'll see whether anyone in Washington intends to start a constitutional turf war by pursuing contempt charges.

I've gone ahead and posted the subpoenas the Committee issued to Terri and Michael. You can read them here. They indicate that the Committee intends to hold a fact-finding hearing on March 25 at the Hospice where Terri's has stayed. Will that really happen? Or has this been just an effort to keep the feeding tube in place while Congress works out a legislative approach to the situation? I suppose we'll soon see about this, too.

Friday, March 18, 2005
Schiavo News: Federal Habeas Petition Denied
Several posts ago, I mentioned the habeas petition that the Schindlers filed this morning in federal court. I suggested we'd hear something quickly from the federal judge assigned the case. It turns out that Judge Moody was the assigned judge, and he denied the petition today.

You can read Judge Moody's decision here.

If you read the order, you'll see that Judge Moody did not reach the merits of the Schindlers' due process arguments. Instead, he determined that the Rooker-Feldman doctrine directs the court to dismiss the case. The Rooker-Feldman doctrine is one of several abstention doctrines that federal courts follow. This one holds that federal courts should not hear claims that essentially ask the court to review the decisionmaking in a state case. The rationale is, basically, that the U.S. Supreme Court is available to review state court decisions that involve federal issues (like due process), and there is no need to turn the lower federal courts into a review system for state decisions.

Now, in the case of those in state or federal custody, Congress has enacted statutes that expressly require federal courts to hear claims that ask for state proceedings to be reviewed. In those cases, Rooker-Feldman does not apply.

As you probably know, Congress has recently been debating whether to adopt a law that would extend the review capacity of lower federal courts to include persons in Terri's circumstances. If that law passed, Rooker-Feldman would not apply, and the court would be able to review the state court proceedings for due process violations. So far, that law has not passed.

Schiavo News: Feeding Tube Removed
The feeding tube was removed earlier this afternoon.

Schiavo News: Florida Supreme Court Rejects Congressional Petition
I wondered in that prior post about whether the Florida Supreme Court would find that it had jurisdiction even to consider the congressional petition to stay the removal of Terri's feeding tube. Well, we know the answer now: no.

Schiavo News: Congress Petitions The Florida Supreme Court
The Committee on Government Reform has just petitioned the Florida Supreme Court, asking that court to stay Judge Greer's order to remove Terri's feeding tube.

You can review the petition here.

I wonder whether the Florida Supreme Court will agree that it has jurisdiction to act here, merits of the request aside. Florida is somewhat unique in that its supreme court does not have general review authority over all decisions rendered by Florida's lower courts.

Looking over the petition, it states in a footnote that the Committee has filed another petition with the Second District. I assume we'll hear from one or both courts soon.

Schiavo News: STAY LIFTED
The story linked in the preceding post has changed. It now indicates that Judge Greer has ordered the feeding tube removed. Previously, it indicated that Chief Judge Demers ordered a stay.

Though it makes me uncomfortable, I'm going to speculate that congressional officials either directly or indirectly requested a stay from Judge Greer, and Chief Judge Demers may have been acting to ensure Judge Greer had time to consider the request. Judge Greer has apparently determined that no grounds for a stay have been shown.

Schiavo News: STAYED
The St. Pete Times reports here that Chief Judge David Demers, of the local circuit court here in St. Pete/Clearwater, has entered an order staying the removal of Terri's feeding tube. Apparently, a congressional committee has subpoenaed Michael, Terri, and Terri's caregivers to appear at hearings on March 25 and 28.

Yes, Terri.

Schiavo News: Legislation, Orders, Subpoenas???
I'm going to try to cover the latest events in an efficient fashion.

First, you can find extensive local coverage at these links in today's St. Pete Times, Tampa Tribune, Sun-Sentinel, Sarasota Herald-Tribune, and Orlando Sentinel.

The short of it in Florida: yesterday, the House passed a bill that, by its text, would seem to prohibit the removal of Terri's feeding tube, but the Senate voted the measure down.

You can read the text of the bill the House passed here. On a political level, the issues seem to boil down to a couple of points. Many legislators want to pass a bill that will stop Terri's feeding tube from being removed. The only way that can even be attempted, though, is to pass a law that changes the circumstances under which all persons may or may not have feeding tubes removed, and a number of senators sufficient to block the overall effort do not wish to change the existing law in this area.

And therein lies so much of where this case stands now: Many people, right or wrong, have convinced themselves not that the law is poorly designed but that, on the facts of the case, the wrong result has been reached here. Yet the legislature can only pass general laws, meaning that what they do will affect everyone, not just Terri. Not everyone agrees that the law in general should be changed.

It may be worth keeping another angle in mind: for the proposed law to affect Terri at all, it will have to be retroactive, and there is considerable debate about whether such retroactivity would be constitutional. If it is not, we could be left with a changed law that did nothing for Terri -- a fine result if the purpose was to change the law, but a poor result if the purpose was simply to keep Terri Schiavo alive.

Meanwhile, up in Washington, a parallel series of events occurred yesterday. A bill passed in the House but was not successful in the Senate. The significant difference between the bill(s) being considered in Florida and the bill(s) being considered in Washington is that whereas the Florida legislature is considering changing the law regarding feeding tubes, Congress is considering simply allowing the federal court system to review cases involving feeding tube removal to ensure that due process has been followed.

While passage of the proposed federal legislation would be rather extraordinary, and political folks will surely enjoy debating whether there's a federal role here or not, the potential impact is comparably low. The Schindlers have raised a number of due process issues in this litigation, and the Florida courts (and the federal high court) have consistently found no due process problems here. It's possible a federal court would disagree, but that's merely a possibility, and the result would at most be a new trial on the issues. By comparison, the proposed Florida bill would block the removal altogether.

Whether Congress knows what it's doing is another matter. Consider this excerpt from the St. Pete Times article linked above:

Members in both chambers were clearly not familiar with all details of the case. They mispronounced her name. They proclaimed she was not in a vegetative state, even though experts say she is and a court agreed. They claimed she did not receive certain brain scans when she had. They wrongly claimed no judge had even granted a family member removal of a feeding tube.
On the judicial side, the Schindlers and the Department of Children and Families made requests for stays from various courts. The U.S. Supreme Court said no to the Schindlers in this order. The Florida Supreme Court said no to DCF in this order, and Judge Greer reportedly said no to DCF in an order I haven't actually seen. As you know, the Second District said no on Wednesday to the Schindlers in this decision and to DCF in this order.

Also on the judicial side, the Schindlers have filed a federal action this morning, seeking to halt the feeding tube's removal. This appears to be a request for a habeas corpus proceeding -- the same proceeding that would be authorized by the bill under consideration in Congress. The folks at Terri's Fight have posted the habeas petition here. From my quick review, it appears to raise the same arguments that were made in the Second District appeal that was lost Wednesday and the same arguments raised in this week's motion for a stay from the U.S. Supreme Court, which was denied yesterday. Expect a quick response of some kind from whichever judge is assigned the case.

Finally, in a move I could not possibly have predicted, word is circulating that a congressional committee -- the House Government Reform Committee -- has issued or will issue subpoenas to various doctors and hospice workers involved in the case, with the intent of forestalling the removal of the feeding tube during an investigation. Read about it in this story from USA Today.

So far as I know, removal of Terri's feeding tube remains scheduled for 1 pm today.

Thursday, March 17, 2005
Schiavo News: Appealing Higher, Congress In Motion
Today's St. Pete Times reports here that the U.S. House has approved a bill that would open the doors of our federal courts to review the Schiavo guardianship case for due process violations.

The Times clearly knows a news magnet when it sees one. The paper also has stories today on protests at the hospice, the Florida legislature's efforts to craft a new bill to save Terri, and how the money's just about exhausted in this case.
Also, the folks over at Terri's Fight have posted this copy of a motion by the Schindlers requesting the U.S. Supreme Court to stay the removal of Terri's feeding tube while they appeal yesterday's decision (this one) from the Second District.

At the moment, the scheduled date for the feeding tube's removal remains tomorrow.

Wednesday, March 16, 2005
Schiavo News: New Appellate Orders Out
The Second District has just released two items.

First, in this decision, the court rejected the Schindlers' latest appeal. The court found no merit in the Schindlers' arguments and issued its mandate with the decision. The Schindlers will not be permitted to request a rehearing.

Separately, in this order, the court is permitting DCF to proceed with its appeal in an expedited fashion. The court refuses, however, to stay the proceedings in the trial court.

Bottom line: the Second District has found no ground to halt the planned removal of the feeding tube on Friday. More on this later.

Schiavo Thoughts: Recent Rulings and Events
So much for getting this post up yesterday...

The last couple of weeks have seen some tabloid-quality turns of events. Most significantly, we had the now famous $1 million and $10 million offers to Michael to walk away -- offers I don't understand. I'm not aware if they were made in writing (if they were, someone please send!), but I can't imagine that the money would not have been conditioned on Terri being allowed to maintain her feeding tube, and that would seem to make the offers rather empty. After all, the court ruled that Terri would exercise her constitutional right to privacy by not continuing to receive nourishment and hydration through a feeding tube. That decision was not simply the guardian's choice.

Bottom line: Michael may be Terri's guardian, but this has been out of his hands for many years. The court decided in 2000 how Terri would exercise her privacy right and the court continues to direct that her wishes be followed, no matter who serves as Terri's guardian. This isn't something that Michael, or any guardian, can undo.

Now, I don't mean to suggest that nothing would change if Michael was not the guardian. For instance, if, say, one of Terri's parents became her guardian, some things could be different. Access to her could change. Her location might change. New grounds for new motions might be produced.

Speaking of motions, Judge Greer ruled on several last week. I've been meaning to go through some.

First, the Department of Children and Families petition. You may recall that DCF petitioned to intervene in this case. You can read the petition here. DCF asserted that it had received complaints of abuse concerning Terri and that it needed to intervene to request that Terri's feeding tube not be removed until after the agency's 60-day investigation period concludes. Judge Greer denied the petition to intervene, and you can read his order here.

Why the denial? In short, the court found no legal basis or even authority to permit DCF to intervene. DCF apparently remains free to conduct whatever investigation it wishes. The court essentially said that it will not interefere with DCF's investigation and DCF should not interfere with the court's role in determining and carrying out Terri's wishes. (I'll note that the petition alleges the recent round of complaints were received on or about February 18 -- nearly 30 days ago, so you might expect that the investigation is well underway at this point. The 60-day period is a maximum investigatory period, not a minimum.)

Another motion resolved last week was the Schindlers' motion to permit Terri to be given food and water orally once the feeding tube is discontinued. You can read that motion here from the Terri's Fight site. The motion included the following lines:

Discontinuing her "artificial life support" in the form of assisted feeding should not also automatically sentence her to death. Instead, Terri should be permitted to attempt to eat and drink by natural means. Ill people often get well, or at least get better. The opportunity to attempt to feed Terri by natural means may demonstrate Terri is able to swallow and to eat and drink naturally.
In denying this motion, Judge Greer stated wrote that the motion appeared to ask for an experimental procedure and that the documents provided in support of this motion were the same ones provided with another motion based on new medical evidence. The court ruled that this motion was thus duplicative and that whether new tests should be conducted will stand or fall with the other pending motion. You can read the order here.

Frankly, that ruling surprised me. I had read the motion as a request that she be given food, as any person in a medical care setting might, even if her feeding tube is removed. The language quoted above, though, does make the motion seem as if the request is actually for a form of therapy, rather than as a basic human right.

Judge Greer also addressed the most recent motion for relief from judgment based on new medical evidence. In that motion, which you can read here, the Schindlers asked Judge Greer to permit new testing on Terri. Denying that request, the court explained that this controlling decision from the Second District previously outlined the circumstances under which additional testing would be appropriate: essentially, when it can be alleged that new medical technologies offer Terri a reasonable chance of significantly improving her quality of life, such that Terri would choose not to discontinue her feeding tube. Judge Greer examined the allegations in this new motion and determined that none of them met this standard. You can read his order here.

Finally, the court addressed the motion I've found most interesting of this recent set: the motion for relief from judgment based on an error in the court's February 2000 decision. The motion, which you can read here, explained that the court rejected the testimony of a witness in the original trial based on a misunderstood fact. Specifically, the witness testified to statements made by Terri in 1982 suggesting that, like Karen Ann Quinlan was being kept alive, she would want to be kept alive by medical means even if in a persistent vegetative state. In the final order, Judge Greer found that testimony not credible partly because the statements about Quinlan were made in the present tense and Quinlan had already died by 1982. But, in fact, Karen Ann Quinlan died in 1985. The Schindlers asserted that this undermined the original judgment and a new trial should be held.

Judge Greer acknowledged the factual inaccuracy but he ruled it had no material impact on his decision. He stated that he reviewed the witness's testimony and his order, and he previously found the testimony less than credible based on additional reasons not impacted by the date of Karen Ann Quinlan's death. He also ruled that under Florida's procedural rules this motion was not timely made. So the motion was denied. You can read the order here. You can also read the original February 2000 judgment here.

Timeliness issues aside, I'm intrigued by the circumstances surrounding this order. Keep in mind that, in a jury trial, jurors are never asked to give written reasons for why they believe one witness and not another, or why they found for one side, or why they awarded a certain amount of money. So this sort of thing can only happen with a bench trial. Here we had a bench trial (appropriately so), and the court memorialized its findings and conclusions in a written order. It is interesting, and perhaps unique, that five years later a factual mistake could be spotted in the order, the matter could be raised with the original trial judge, and the judge could rule -- in essence, clarify -- his original decision. In an ordinary case, one might wonder whether the judge could accurately make such determinations at such a late date. But this is no ordinary case. This case has been constantly in front of this judge for years. Very interesting.

That's the wrap up for now. More to come...

Tuesday, March 15, 2005
Schiavo Thoughts
I've posted below a bevy of thoughts on some recent cases, and I've done my best to ignore the 800-pound gorilla standing next to me. Until now. Since a lot of people are checking this web log for updates and thoughts about the Schiavo saga, I'm going to describe the order in which I'm about to tackle the pending issues.

My next post, later today, will discuss Judge Greer's rulings from last week. The following post will discuss the pending appeals by DCF and the Schindlers. The following post will discuss the bill that's now advancing through the Florida Legislature, and, finally, I will discuss the proposed federal legislation.

At the moment, I'd like to offer some thoughts on a recent decision that is unrelated to the Schiavo case and yet has so much in common with that saga. The case involved a Jewish man from New York who recently died. In 1992, he supposedly executed a will that, among other things, declared he would like to be buried in his family's plot in a Jewish cemetery in New York. He had been married to his wife for approximately 30 years. She was not Jewish, and if he was buried at the family site, she would not be buried with him.

Around 1999, the man and his wife moved to Florida. The man later grew ill and apparently began to suffer from dementia and Parkinson's disease. Around this time, he told his wife he would like to be buried with her in Florida. He told his daughter this, too. Then, while visiting his sister in New York, the man executed a durable power of attorney, naming his brother as his agent. The wife subsequently instituted guardianship proceedings in Florida. So did the man's brother. The wife and brother each sought to be named guardian. The man knew his family was feuding over him. During a physical exam associated with the guardianship proceedings, he told the physician that he wished to be buried in Florida, with his wife.

Before the man's death, his brother produced the 1992 will. Asked about it by his wife, the man said he had never executed a will.

After the man died, his wife wished to bury him in a plot in Florida, based on his expressed wishes. The brother and sister wished to bury him in the family plot in New York, based on the will. The matter was brought before a court. After a trial, the court found, by clear and convincing evidence, that the man had changed his mind after executing the will, and that he wished to be buried in Florida.

On appeal, the appellate court affirmed the trial court's decision, concluding there was sufficient evidence for the trial court to have found, by clear and convincing evidence, that the man changed his mind. Regarding the law on whether the man's oral statements could change the effect of his 1992 will, the appellate court explained:

In Florida, as in New York, a will is construed to pass all property that the testator owns at death. See § 732.6005(2), Fla. Stat. As set forth above, the testator’s body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. We therefore conclude that a testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.

To hold otherwise could cause untoward results. Nelson v. Schoonover is an example. There, the wife had resided in Ohio when her will was made but subsequently moved to Kansas with her husband. Obviously, burial in Ohio would have taken her away from her family. A more common occurrence might be the execution of a will during marriage indicating a burial location with the spouse. A subsequent divorce would make following such a direction impractical and not in accordance with the testator’s intent.

Our current society is exceedingly mobile. One might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one's body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.
Many seem to think that oral expressions of intent or desire should be without legal significance, at least if the issue concerns whether one would wish to continue life-prolonging medical treatment in the face of a terminal illness or a permanent vegetative state. I wonder if people who think that way also think the law announced in this case is unwise, too, and that what's best for us all is a society where the written word is supremely binding in such situations.

I'm well aware of the bill pending in the legislature and what it says. I'll get to that later.

If you'd like to read more about the case I mentioned, it's a Fourth District decision released last Wednesday, and it's available here.

Fifth District: Cracked Windshields, Vol. II, Issue I
This decision from the Fifth District makes me wonder what it takes for two district court decisions to be in express conflict.

You may recall this post from last month concerning the Second District's en banc decision that any crack in a windshield is a violation of Florida law and grounds for a stop. The court rejected the dissenting view that cracked windshields are only unlawful if the crack impedes the driver's vision or otherwise endangers the driver or the public.

Well, this past Friday, in the decision linked above, the Fifth District decided its own cracked windshield case. The court affirmed the denial of a suppression motion because there was sufficient evidence for the trial court to determine that the officer had a lawful basis to stop the defendant – the crack appeared to make the vehicle unsafe. After stopping the defendant, the officer determined that the windshield was in fact unsafe.

To be clear, the Fifth District never squarely held that a cracked windshield is unlawful only when it is unsafe for the driver or others, but that's clearly the premise on which the decision rests. The Fifth District does not mention the recent Second District decision.

Is there conflict between the Fifth and Second Districts? The Fifth probably has little interest in certifying a conflict, since the trial court's factual findings mean the suppression motion was properly denied under either view of the law. But the Second District certified a question of great public importance in its case, and perhaps the jurisdictional door to the high court just got a little more wide.

Fourth District: There Is No Improper Closing Argument
This decision from the Fourth District tells us two things: comparing a defendant to the Iraqi Minister of Information in a closing argument sure seems like error, but it's not the sort of error that can be raised post-trial if no contemporaneous objection was made.

Fifth District: Arbitration
The latest arbitration decision from Florida's appellate courts is this one from the Fifth District. The contract at issue was found to contain an opprobrious attorney's fees provision, which the trial court held voided the agreement. Apparently severability was not raised in the trial court, and the appellate court rejected that issue as unpreserved.

I suggest that this decision be read with care. Had severability been properly raised, it would likely have controlled the outcome, and a decision affirming the trial court's refusal to compel arbitration would squarely conflict with recent federal court authorities and the Second District's recent decision in this case. In fact, it may still conflict to the extent the Fifth District meant anything substantive when it commented that the contract here contained no express severability provision.

Fourth District: Spoliation
Those collecting spoliation case law may be interested in this brief opinion from the Fourth District, affirming a summary judgment against a plaintiff's spoliation claim.

Chief Judge Farmer's Unavailing Efforts
That's what he called them. He was speaking of the Standard Jury Instructions (Civil) Committee's attempts to draft understandable jury instructions. He also commented on how jury instructions need not parrot the precise language of the case law. Interesting. Check out his concurrence here.

Fourth District: Class Actions
Those who follow class action case law may wish to check out this recent decision from the Fourth District. The appellate court reversed a trial court's order certifying (b)(2) and (b)(3) class claims against a mortgage lender. Now that I think about it, that's my mortgage lender....

Fifth District: Statutes of Limitation and Repose
Those interested in statutes of limitation and statutes of repose may wish to check out this interesting decision from the Fifth District.

Fourth District: Entrapment, and Potential Conflict
With an en banc opinion, available here, the Fourth District has raised the bar for objective entrapment. Three judges found the court's new position in direct conflict with decisions from other districts.

Fourth District: Medical Negligence, Revisited
In a decision that eliminates a conflict in the districts over whether vicarious liability for a sexual battery occurring in the course of, but otherwise unrelated to, medical treatment arises out of the rendering of medical services, the en banc Fourth District receded from its prior view and held that such claims do not trigger Florida's presuit notice requirements. You can read the decision here.

Two additional points of interest:

First, it seems the plaintiff was pro se on appeal. Someone missed out. The en banc decision was unanimous.

Also, Judge Gross was the author of the court's earlier, now disapproved decision, and in this new case, he filed a concurrence offering some of the more eloquent thoughts you'll ever hear about the nobility of changing one's mind. Check it out.

Fourth District: Duty
Two guys walk into a gym. While one is working out, the other tosses dumbbells onto the floor, creating a loud noise and causing the first patron to turn suddenly and injure his back. The injured patron then sues the gym in negligence for failing to train its patrons in proper dumbbell usage. Duty?

Uh, no. Check out the Fourth District's decision here.

Fifth District: Immunity
For an interesting discussion on use immunity, and when advice of counsel may and may not be sufficient to avoid a contempt of court adjudication, check out this decision from the Fifth District.

Fifth District: Certiorari
Okay, appellate experts: can a writ of certiorari be used to quash an order bifurcating trial of a third-party complaint from trial of the principal complaint? The Fifth District found no irreparable harm in this case.

Fourth District: PIP and PPOs
The Fourth District has waded into the already conflicted waters of when PIP insurers may take advantage of, and pay at, reduced PPO rates. You can read the decision here.

Fourth District: No Thanks
It's one thing for an appellee to concede error on appeal. It's another to have that concession rejected, as occurred in this decision from the Fourth District.

Sunday, March 13, 2005
Schiavo Thoughts: Mail Call
Sometimes I'm tempted to just reproduce my email answers here, which might save me a bit of typing. Usually that won't work, but occasionally there's one that covers a lot of ground and might be interesting to folks in general. Here's one I received yesterday, a bit condensed:


I have been following your commentary on the legal aspects of this case and find it informative to a degree, but lately you do not seem to be as focused on the law as you have been in the past, and are letting personal opinion slip through. You have not clearly analyzed the points of law in Greer's latest rulings but just sidestepped with comments like "I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other."

This case seems to have several elements of fraud in it, including actions by Felos, who has interests in the hospice, and the doctor who certified her pvs. What real recourse do members of the general public, like me, have to see a criminal investigation opened into this matter, and to possibly have Greer impeached?

I am also interested in whether the DCF could legally take Terri into protective custody to protect her from further abuse.
And my response:

I apologize if my focus has seemed less legal of late. The truth is that this case takes hours upon hours of time to follow and I work about 60-80 hours per week anyway. Also, the volume of email I've been getting has been astounding, and I try to respond to everyone. That's left less time for blogging about it all.

I hope I haven't appeared to give my personal opinion of what I think Terri would have wanted -- I don't have one.

My comment on not being aware of any controlling law was not an effort to sidestep a point of law in a ruling. It was an effort to help people understand that there is no controlling authority here either way. If you disagree, please send me the citation to a controlling legal decision or controlling statutory authority. I'm very curious about what it is you thought I was sidestepping.

Now, to answer your questions as best I can:

I don't see fraud in this case. Whether an attorney has a connection to a hospice sounds like tabloid fodder. What's the significance? Are you saying that anything would be different in the last few years if Terri had been residing somewhere else, with the same orders in place from the court and the guardian? This sounds like an effort to smear Michael's attorney with no connection to the real issues. If federal monies have been misspent on Terri's care, then appropriate punishments should be meted out, but that has nothing to do with Terri's wishes and whether her feeding tube should remain in place.

As for doctors certifying her as PVS, please understand that the judge has held two trials, heard from numerous experts, and twice found her to be in a persistent vegetative state. People saying she is not in a PVS are simply disagreeing with the results of the trials. In the eyes of the law, Terri is in a persistent vegetative state. The debate was resolved at a trial -- two, actually -- and affirmed on appeal each time.

A criminal investigation? Well, the general public always has the right to ask local police and sheriff's officials to investigate the violation of any laws. I can tell you, though, that folks have been asking for investigations into this case for years. So far as I know, the official conclusion is that there's nothing there. I can't vouch for that conclusion, but I can say that no guardianship case has received more attention from reviewing authorities in the history of this state, if not the country, than this one. I like to think our officials are honest and that if there was something there, we would all know about it by now. I know there are theories that say every official in Florida is conspiring to hide the truth here, but my experience with Florida's officials is that they are noble, hardworking, and honest. If they say there's nothing here, I'm inclined to believe them.

As for DCF taking Terri into protective custody, that would require removing her from the authority of the guardianship court. I'm not aware of that ever having been done before, and while I've never studied the issue in depth, I'm not aware of any existing law that would permit it to be done. It's one thing to say that Mr. Smith may be abusing someone and the executive branch needs to remove that person from his custody to prevent abuse; it's another thing entirely to suggest that the Florida judiciary may be abusing a ward under its supervision and that the executive branch needs to remove the ward from another branch of government's watchful eye. Talk about a constitutional crisis -- you'd have one there.

As for impeachment, you are mistaken. Impeachment is a tool for removing public officials who have lost the public's trust through actions other than their judicial decisions. The route for correcting erroneous judicial decisions is the judicial appellate process.The Schindlers have availed themselves of that process time and again, and thus far the appellate courts have agreed that the law has been correctly followed here. So the trial judge's judicial decisions are not cause for impeachment, and I'm not aware of anything concerning other actions in his life that would merit even disapproval, let alone impeachment. Ultimately, there is a reason impeachment talk persists only at the outer fringes of this saga.

Thanks for your interest and taking the time to write. And by the way, the twenty minutes it took me to respond to your email is twenty less minutes I can devote to the blog. Now imagine responding to 100s of emails.

Schiavo Thoughts
Well, I've finally responded to all of last week's emails regarding the Schiavo saga. After nearly two years discussing this case, I thought I'd seen and heard everything. But this week I got an email that ended with a new twist:

Do you have the mental power to entertain the possibility that Michael Schiavo choked his wife and caused her to suffer hypoxia long enough to experience an arrythmia necessitating cardioversion by the paramedics? Do you not realize that life-threatening arrythmias may starve the brain of adequate perfusion of cerbral tissue with oxygenated blood, causing brain damage but not immediate death? Do you not have the mental capacity to entertain the idea that the Teresa Shiavo case has been selected as a means to bring about global population reduction?

Do you not realize that the current global population threatens to destabilize and wreak havoc on the environment? Do you not realize that the current global population is not sustainable? That is the truth, and we should all admit it and adopt the two-child Chinese policy globally. Violation of the policy would constitute implied consent to have the third child placed into adoption, and the violator to be sterilized immediately. This would reduce the barbarian act of abortion and would promote glasnost between the rulers and the governed. It's time to wake up, come out of a vegetative state, and smell the global coffee.
I think those two paragraphs go together, but I'm not sure. I am rather sure that the Schiavo case is best viewed as a family struggle over a loved one, not an international campaign for anything.

Saturday, March 12, 2005
Third District: Reasonable Suspicion
Add this to the list of reasons to avoid fire drills when stopped at an intersection.

(driving tip brought to you by the Third District)

Second District: Rule 1.525
This decision from the Second District would seem to suggest that orders granting untimely motions for attorney's fees are not void for lack of subject matter jurisdiction. The court rejected an untimeliness argument because it was not preserved.

Congrats are in order for Nancy Ciampa, a member of the appellate group at Carlton Fields. A number of us at the firm have volunteered to do pro bono criminal appeals for the local public defender, and Nancy just got a win for her fortunate client in this decision from the Second District. Justice has been well served.

Second District: Nominal Alimony
Family law fans may be interested to know that nominal, not none, remains the preference for alimony where an inability to pay is not seen as permanent. Check out this decision from the Second District.

Third District: Inferences
Does anyone get a summary judgment anymore based on the idea you can't pyramid inferences? This decision from the Third District shows the answer is yes.

First District: Implied Cross-Appeals?
Many of us are familiar with the "right for any reason" concept that permits an appellate court to affirm a trial court's decision if the result was correct but the trial court's reasons were not. Well, here is a twist on that notion.

The First District considered an appeal by Florida's Wiccans concerning the constitutionality of a Florida sales and use tax exemption for religious books. The trial court held the exemption constitutional and rejected the Department of Revenue's argument that the Wiccans lacked standing.

The Wiccans appealed the adverse ruling on their constitutional challenge. DOR didn't cross-appeal the standing decision, but as appellee it argued the standing issue on appeal. The Wiccans apparently responded, both in the briefing and at the oral argument. The district court then reversed based on a lack of standing, finding the failure to notice a cross-appeal to have been waived. Judge Benton dissented on grounds that affirmative relief could not be granted to DOR in the absence of a cross-appeal. He would also have held the exemption for religious publications unconstitutional.

Second District: Frye
Those tracking case law on expert witnesses will be interested in this decision. The Second District reversed an order excluding a plaintiff's expert's causation testimony in a medmal (childbirth) case. The expert's testimony was based not on novel procedures but on the expert's personal observations, so Frye did not apply.

The court did not hold that all personal observation testimony is necessarily admissible. Rather, the court considered the connection between the expert's experiences and the facts in the case and found an adequate relationship.

Third District: Bare Elections
If a physician elects to "go bare" and a medmal judgment against him is not collectible, is a hospital where the physician has staff privileges liable for the minimum malpractice coverage amount? No, said the Third District in this case.

First District: Certiorari
The First District knows how to prevent a later appeal where an otherwise meritorious certiorari petition is prematurely taken: discuss the error below before considering the jurisdictional issue of irreparable harm. No doubt the trial judge in this case now knows what to do.

Second District: Compounded Conflicts Over Rule 1.525
We already have conflict among the districts over whether a reservation of jurisdiction to award attorney's fees permits a motion for fees to be filed more than 30 days after the entry of judgment. With this decision, the Second District has reaffirmed that disagreement and also certified conflict over the related issue of whether rule 1.525 applies to post-decretal orders in dissolution cases.

Third District: Internet Ready
So far as I've noticed, the Third District is the only Florida appellate court putting invitations to bid on its web site. I wonder how many painters will see this?

Second District: Blakely
Those following the impact of Blakely v. Washington may wish to check out this decision from the Second District. A Blakely reversal.

First District: Nonparty Appeals
Appellate folks may recall that, last month, we saw the Third District remind us about the need for nonparties to appeal adverse sanctions orders immediately, or not at all. This month, in this case, the First District reminds us of how nonparties who've been held liable in a more traditional final judgment can pursue a plenary appeal.

Yeah, I'm out there...
Working away. It turns out my emails during my break this week number in the hundreds, and in addition to responding to them I've had to catch up on a great number of events. So even though you don't see new posts up yet, I'm working on them, and I'll be back.

Friday, March 11, 2005
Abstract Pause
Thanks for stopping by. I know the timing is bad with much going on in Florida legal news right now -- especially the explosion of events related to the Terri Schiavo saga -- but my real job has jumped into high gear the last few days, and I just haven't been able to blog. Nor have I been able to respond to email. To make matters worse, Blogger has been utterly functionless for me for the last two days, preventing me from even posting a quick note each time I tried.

It looks like this post is going to make it up, and that the schedule will relax a bit by this afternoon. I'll start posting and responding to this week's email then.

I can't wait to talk about what's going on. Gosh this stuff is good.

Tuesday, March 08, 2005
Schiavo News
I haven't posted anything on it, but I did read this story from the St. Pete Times this weekend. It's a short biography on Judge Greer. I had no idea he roomed with Jim Morrison in college.

This week, Judge Greer is holding a series of hearings in the Schiavo case to address the numerous motions filed recently by the Schindlers. According to this story in today's St. Pete Times, the judge rejected several motions yesterday, took one under advisement, and granted one.

The granted motion requires Michael Schiavo to provide a videographer to record Terri's parents' time with her after the feeding tube is discontinued.

The rejected motions include those asking for Terri to be relocated to the Schindlers' home after nourishment is discontinued, to allow the Schindlers to be accompanied by select media when visiting Terri, and to bury Terri's body in Florida. (Michael wishes her body to be cremated and her ashes returned to her native Pennsylvania.)

None of those rulings was a surprise. More interesting, and less predictable, is how Judge Greer will rule on the motion he took under advisement: a motion to allow Terri to be fed orally once the feeding tube is discontinued.

That's a puzzling question. I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other.

Delving deeper into the merits of the question, it is true that the issue regarding Terri's wishes concerns whether she would permit medical treatment, and the use of a feeding tube to feed someone is considered medical treatment under Florida law. The issue is not whether Terri would starve herself to death, it is whether Terri would chose to allow science and medicine to prolong her life. So, on one hand, it seems logical to say that a decision not to utilize a feeding tube is not the same as a decision not to receive food.

On the other hand, the inability to ingest food and water and the desire to discontinue medical treatment in the face of death are significant factors in the ultimate decision regarding Terri's wishes. The December 1, 2003 guardian ad litem report details that Terri was previously given three sets of swallowing tests, and all three concluded that she cannot safely swallow. If she is given food or water orally, there is apparently a significant risk she will aspirate it -- sending it down her lungs. In a large quantity, it seems she would choke to death. In small quantities, food particles in the lungs will lead to infection and pneumonia, and then death. As everyone knows, I'm no doctor, but that's my understanding of what's going on.

So getting back to the question, would a person who is medically determined to be unable to swallow and who has chosen not to utilize a medically necessary feeding tube also chose to take in food and water orally, leading to death not by dehydration but by choking or infection? Can those two positions be reconciled?

I suppose we'll see.

Reality Writes
As long as I'm looking at the Sun-Sentinel, here is a story in today's paper about the influence of lobbyists. It's a fine story, except for the headline. Anyone who doesn't know lobbyists regularly propose the text of desired legislation is not paying attention.

Which brings to mind a related point: If you're surprised that lobbyists sometimes offer legislators neatly packaged legislative proposals, will you be shocked to learn who is actually writing the constitutional amendments we Floridians are voting on every two years? At least the lobbyists are probably from Florida.

Slots Slated
The big news in South Florida right now is the vote in Miami-Dade and Broward Counties on whether to allow slot machines at pari-mutuel sites (racetracks and jai-alai frontons) in their respective counties. You may recall that Florida voters approved this constitutional amendment in 2004, giving those two counties the ability to hold today's vote.

Today's Sun-Sentinel has a story on the vote here.

It looks like a day/night work schedule is going to continue for a couple days. To those of you who've emailed me since the weekend, I will respond as soon as I can.

For those looking for some updates on what's going on in Florida law, I'll try to get some posts up as I can, including Schiavo updates.

And to everyone who happens by this little corner of the blogosphere, thanks for stopping by.

Monday, March 07, 2005
...Becomes An Afternoon Break
Well, when it rains, it sometimes pours, and I'm all wet right now at work. Be back soon.

Morning Break
Thanks for stopping by. I hope everyone had a great weekend.

Some pressing work will keep me from the blog for the next few hours, but I'll be back this afternoon.

Friday, March 04, 2005
Schiavo News
Thanks to the reader who sent me a copy of the now unsealed DCF petition. I've posted it here.

Schiavo News: Motion Blitz
Those last three posts were the easy parts. The hard part of this case is following the blitzkrieg of motions filed in this last week by the Schindlers.

Many of the motions, but not all of them, are available here on the Terri's Fight site.

You can divide the motions into two sets. Most of them are related to the procedures to be followed if Terri's wishes (as determined by the court) are to be carried out. They concern issues like whether the tube must be physically removed or merely disconnected, whether Terri can be fed orally once the tube is no longer functioning, and how and when the family, the media, and religious persons can access Terri. Those motions are being heard by Judge Greer today at 1:30 pm.

The remainder of the motions are the ones you have probably heard about. They are the latest efforts to attack Michael and undo the original judgment. They include the motion for divorce, objections to Michael's guardianship plan, and a request for an evidentiary hearing on the Schindlers' effort to remove Michael as guardian. (On a related note, there is a good amount of back-and-forth going on before the trial court concerning the ongoing effort to remove Michael as guardian, but I'm not going to get into that now, considering the current order to remove the feeding tube on March 18.)

It appears Judge Greer is not going to address these motions at today's hearing. Whether he will deny them outright or simply refuse to hear them is not clear. Either way, it looks like his thought process is probably along the lines expressed in this order entered February 25. There, the trial court found that there has been no end to the Schindlers' motions to attack the original judgment and that going forward whether such motions have merit and should be the basis for a stay is going to be a decision for the appellate courts.

After today's hearing, we'll know more on exactly what's being considered and what's just being denied. For now, I will offer some comments on the tension being seen here. It's a classic tension, discussed for centuries by legal scholars, between finality and justice. Our judicial system seeks justice, first and foremost, but a component of justice is the finality that comes when a matter reviewed by the court system concludes. You either win or lose. Litigation ends.

The importance of finality can be seen in many aspects of the law. Issues may be litigated only once. Judgments may be appealed only once. Defendants may be tried for criminal offenses only once. Post-conviction (criminal) or post-judgment (civil) motions are usually available to attack a judgment collaterally, but the issues that can be raised in such proceedings are rather few, and the law is usually consistent that such attacks must be brought at one time, not piecemeal. So if you have 10 reasons to attack a judgment, you are required to bring all ten at the same time, not one at a time.

Anyone can see that the Schiavo case has consisted of a series of piecemeal attacks. Some of these were permitted by the system -- for instance, the post-judgment motion alleging that new medical procedures offered hope for Terri to recover was something new that the courts were willing to entertain. Judge Greer held a trial on that issue, hearing all the evidence, and the court ruled that there was no medical basis to believe the therapies suggested by the Schindlers' doctors would improve Terri's cognitive abilities. Other motions have raised issues that could have been raised immediately after the original trial. So far, the courts have been very lenient in allowing such matters to be heard. Now, though, it appears that leniency may have come to an end. We'll see.

Schiavo News: The Appeals
As best I can tell, this saga involves only one active appellate proceeding at the moment. It could involve two, if the Schindlers do as their counsel has indicated they will do and appeal the Second District's most recent affirmance of Judge Greer's rulings to the United States Supreme Court. But no such appeal has been taken -- yet. (Read more about that ruling in this prior post and the post linked therein.)

So there's only one appeal out there. Right now.

The existing appeal is being taken from Judge Greer's February 11, 2005 order denying what was then the most recent motion for relief from the original judgment. The motion, available here, alleged that the original judgment should be vacated for three reasons: Terri had improperly been denied her own attorney in the original proceedings, the court had improperly applied Florida's statutory law retroactively to Terri's case, and the court violated separation of powers principles by determining Terri's wishes (rather than allowing them to be determined by, say, an administrative agency). Judge Greer rejected all three arguments as without merit.

The Second District has already entered a scheduling order in the appeal. You can read the order here. It expedites the case, requiring the Schindlers to file their initial brief by this coming Monday and for Michael to file any answer brief by next Friday. The order indicates that the court intends to rule by March 17 and that the Schindlers' motion to stay remains pending before the court.

Schiavo News: Federal Legislation
Rolling, rolling, rolling. This train continues to roll. It never stops, but somehow it keeps picking up passengers.

For instance, from this press release by Jacksonville's Justice Coalition, it seems Representative Dave Weldon intends to propose federal legislation that would grant federal courts jurisdiction to review Terri's case. The constitutional hook for such legislation would appear to be Congress's right to provide for habeas corpus review. Habeas corpus is, in essence, a judicial proceeding to test the legality of someone's confinement. Federal habeas corpus proceedings test the legality of confinement under federal principles.

I am really looking forward to seeing this proposed legislation. How will it work? I noticed in the St. Pete Times story linked in the preceding post that Rep. Weldon intends the proposed legislation to "give Terri Schiavo, and others in her position, her own legal representation and other protections." So is Terri going to get an attorney?

This brings up a world of questions. Who would be the attorney's client? Terri? I don't think anyone is going to suggest Terri can provide an attorney directions, so is the legislation simply going to direct an attorney to advocate that she would not want life-prolonging measures stopped, despite the state court's judgment following trial that she would want her feeding tube removed? Will her guardian have a say in her representation?

Who would pay the attorney? The government, whether Terri's indigent or not? Terri, if she's not indigent?

Would the procedure simply ensure that due process was followed? Or will the law set forth any required procedures and attempt to make them retroactively applicable? Will there be some substantive aspect to the law?

The bill may be introduced as early as next week. As for its chances to pass, I'll leave that to the poli blogs.

Schiavo News: DCF
First, let's mention the petition to intervene filed by the Department of Children and Families. You may recall that DCF filed that petition on February 23, asking for a 60-day delay in the case so that recently made abuse allegations could be investigated. Judge Greer has not had a hearing on the matter yet, but one is apparently scheduled for Wednesday, according to this story from the St. Pete Times. The Tampa Tribune has a story here.

The media have wanted to see a copy of DCF's petition, and they challenged the agency's efforts to keep it from the public. Yesterday, Judge Greer ruled that it should be made available, and its contents are discussed in the stories linked above.

Apparently, the petition names no source for the allegations, and the allegations themselves are related only in general detail. They seem to mirror what those following the case have heard said for years: Michael Schiavo failed to file guardianship reports and plans, lack of therapy, etc. I have not yet seen the petition, but nothing mentioned in the news reports sounded new.

Wednesday's hearing should be interesting. I suspect the judge will want to know why delaying the feeding tube's withdrawal is necessary for whatever investigation is taking place.

Schiavo News
My workload has been keeping me from calling out the stops as this train continues to roll, but I'm going to try right now to summarize where things are on a few levels.

Here goes.

Thursday, March 03, 2005
Amicus Briefs
I noticed that the Florida Supreme Court recently granted three motions for leave to file amicus briefs in the high profile Rush Limbaugh case. Good to know. You might recall from this post that last year, things got a little odd in Tallahassee with amicus briefs.

Lots of us enjoy reading Overlawyered.com, a great blog chronicling the mirth generated by an overly litigious society. Perhaps Walter might want to consider a companion blog, like Underlawyered.com, to track cases where a lack of representation produced similar joys.

The blog could start with this inmate's Eighth Amendment suit against the Georgia prison system for allowing him to be exposed to cigarette smoke. The Eleventh Circuit affirmed a summary judgment for the defendants.

By the way, underlawyered.com is available. Hurry.

Eleventh Circuit: Employment
Can a not-so-good raise be an adverse employment action under Title VII? Yes, said the Eleventh Circuit in this case.

The issue reminds me of the current conflict in Florida's district court's over whether a party who seeks a post-trial additur is adversely affected by an order granting an additur but in an amount less than requested. See this prior post for more on that conflict.

Eleventh Circuit: Interstate Commerce, Arbitration, and Payday Loans
Guess how much weight the Eleventh Circuit gives to a state legislature's codified statement that a particular activity does not involve interstate commerce. If you guessed none, you're right. For more, check out footnote 6 of this recent decision involving the Federal Arbitration Act, and check out the whole opinion for an interesting examination of arbitration in the context of an allegedly usurious payday loan agreement.

The case involved Georgia law, but a comparison between the decision here and the Florida Supreme Court's decision in this recent case can bring lots of fun.

Schiavo Thoughts
Between a heavy workload at the moment, personal commitments, and lots of Schiavo-related email, I'm having a hard time getting material up here on the blog. To those who've been waiting on some thoughts from me regarding recent developments, I appreciate your patience.

I spent some time early this morning writing an email in response to a common question, and rather than keep answering it, I'm going to post my response here, and in the future I'll just refer folks to this post.

The question was essentially this: Michael only mentioned Terri's supposed wish not to be kept alive this way only after the medical malpractice trial was over, so doesn't that show he just made it all up after he got the money? My original answer was rather short. I mentioned the "realities of litigation" and how it didn't surprise me that the issue never came up in the earlier trial. The reader then asked me to explain what realities I was talking about. Here's my response:

Hmmm. "Realities of litigation." It means a lot of things. We have an adversarial system of justice. The way it works is that we pit two sides (or more) against each other, each charged with presenting its best case on the law and the facts to the court and, sometimes, the jury. Decisions are then made based on what's presented, and the decisions bind everyone involved. Ethical lawyers don't lie and don't permit anyone to be defrauded, but they also aren't neutral. They have clients who require advocacy. So if I am Michael's attorney in the malpractice case, there is no way I am going to ask him at a deposition or at trial about whether Terri expressed any desire not to remain in a state like she's in. I would ask privately, but not when the answers are being transcribed. That's something for the other side to talk about, if they choose to do that.

But would the other side ever choose to talk about it? If the doctors' attorneys had asked him about it in deposition, then you and I would not be having this conversation. But they apparently didn't ask, and that's not illogical, because the answer either way was probably never going to come up at trial. Think about it. Imagine you're on a jury in a medical malpractice case. The plaintiff is a woman who's in horrible shape, the defendants are blamed for having caused her injuries by failing to diagnose and treat her properly, and the husband is seeking money to care for her for the rest of her life. How will you react to a defense by the doctors that says we didn't do anything wrong here, sure we treated her but there was no way for us to know she was bulimic, we were treating her for pregnancy problems not eating disorders... You may disagree with the defense and find the doctors liable but you probably won't be mad at them. Now, how will you react if the doctors also defend by saying and by the way this woman's really, really hurt, so hurt that she's never going to recover, and she told him she wouldn't want to live this way, so at some point he's going to let her die and jury you shouldn't give him money for her lifelong care even if we were negligent because there's never going to be any lifelong care... How would you react to that defense? You and your fellow jurors would probably be furious with the doctors for saying such things, and the verdict might reflect that furor with a ridiculous sum of money.

So I can't believe any lawyer representing the doctors would bring the matter up, either. The result: this issue is not coming up at the malpractice trial. I'd be surprised if any lawyer disagreed.

In the end, Michael's testimony that he wanted to care for Terri for her and his whole lives can be viewed in multiple ways. On one hand, it's consistent with someone who believed he wanted to care for his wife to bring her back, but who later lost hope when doctors convinced him they'd done all they could do. Keep in mind, the malpractice lawsuit was filed very early on, as you would expect to happen. Trial didn't happen for years, and Terri received tremendous care, attention, and therapy through 1994 -- read the GAL's report and the court decisions for that chronology. The view she would never recover developed slowly, over time, and the degeneration of her cerebral cortex apparently wasn't seen for years. Perhaps Michael's view of that outlook changed slowly, too. Then again, perhaps he lied then or is lying now. Perhaps he knew she wasn't coming back, or either way he didn't want her to come back -- he just wanted to get through the malpractice trial, collect as much money as possible, and let her go. Perhaps. I don't know. I think people just see here what they want to see.

Let me be clear: I'm not saying I have any idea what was really going on in Michael Schiavo's head. I'm not defending him. I'm reacting to numerous statements being made that "he never mentioned her wishes during that trial so he must have just made it all up after the lawsuit." In my view, people saying that don't understand how litigation works. Whether Terri's wishes came up in that trial has nothing to do with whether Michael's been honest in this case about Terri's wishes.

Tuesday, March 01, 2005
Schiavo News
It took a ton of time to catch up on email relating to this case, and I'm just about there. Unfortunately, that's kept me from reviewing the slew of eleventh-hour motions filed yesterday by the Schindlers.

You can read local coverage of yesterday's filings in these stories in the St. Pete Times, Tampa Tribune, and Orlando Sentinel.

I'll comment at length when I've had a chance to go over yesterday's filings.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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