Abstract Appeal -- by Matt Conigliaro

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.

...posted by ⊥ 10:08 AM ⊥ #

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.

...posted by ⊥ 9:53 AM ⊥ #

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.

...posted by ⊥ 8:45 AM ⊥ #

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.

...posted by ⊥ 8:30 AM ⊥ #

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.

...posted by ⊥ 9:38 AM ⊥ #

Unwinding

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.

...posted by ⊥ 7:43 AM ⊥ #

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.]

...posted by ⊥ 7:12 AM ⊥ #

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.

...posted by ⊥ 6:51 PM ⊥ #

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.

...posted by ⊥ 6:13 PM ⊥ #

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.

...posted by ⊥ 5:42 PM ⊥ #

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.

...posted by ⊥ 12:10 PM ⊥ #

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.

...posted by ⊥ 11:35 AM ⊥ #

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.

...posted by ⊥ 9:09 AM ⊥ #

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.

...posted by ⊥ 7:44 AM ⊥ #

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...

...posted by ⊥ 6:02 AM ⊥ #

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.

...posted by ⊥ 5:25 AM ⊥ #

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.

...posted by ⊥ 5:00 AM ⊥ #

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.

...posted by ⊥ 5:50 PM ⊥ #

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.

...posted by ⊥ 11:58 AM ⊥ #

Schiavo News: U.S. Supreme Court Denies Relief

The very short, very typical denial is available here.

...posted by ⊥ 10:39 AM ⊥ #

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.

...posted by ⊥ 9:10 AM ⊥ #

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.

...posted by ⊥ 12:01 AM ⊥ #

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.

...posted by ⊥ 5:40 PM ⊥ #

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.

...posted by ⊥ 5:03 PM ⊥ #

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.

...posted by ⊥ 4:47 PM ⊥ #

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.

...posted by ⊥ 4:04 PM ⊥ #

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.

...posted by ⊥ 3:26 PM ⊥ #

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.

...posted by ⊥ 8:50 AM ⊥ #

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.

...posted by ⊥ 5:57 AM ⊥ #

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.

...posted by ⊥ 8:30 AM ⊥ #

Schiavo News: Judge Whittemore's Order

I've posted Judge Whittemore's order here.

...posted by ⊥ 7:33 AM ⊥ #

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.

...posted by ⊥ 6:46 AM ⊥ #

Schiavo News: REQUEST DENIED

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...

...posted by ⊥ 6:15 AM ⊥ #

Monday, March 21, 2005

Chatting

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.

...posted by ⊥ 5:02 PM ⊥ #

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.

...posted by ⊥ 1:01 PM ⊥ #

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.

...posted by ⊥ 12:34 PM ⊥ #

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.

...posted by ⊥ 9:58 AM ⊥ #

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.

...posted by ⊥ 5:16 AM ⊥ #

Schiavo News: CONGRESS PASSES TERRI'S LAW

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.

...posted by ⊥ 1:20 AM ⊥ #

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.

...posted by ⊥ 4:44 PM ⊥ #

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.

...posted by ⊥ 4:25 PM ⊥ #

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.

...posted by ⊥ 11:49 AM ⊥ #

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.

...posted by ⊥ 11:07 AM ⊥ #

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.

...posted by ⊥ 12:50 PM ⊥ #

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 procee