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Welcome. The following is a compilation of Abstract Appeal's posts from 2004 regarding the Terri Schiavo saga.

The left column contains links to other Abstract Appeal pages, including the blog's main page and Schiavo post compilation pages for 2003 and 2005.

For those looking for "highlights" of a sort, I've also created this page, which contains links to some of my more popular Schiavo posts.






Wednesday, January 07, 2004

 
Schiavo News. News in the Terri Schiavo case has been rare of late, as everyone waits for the Second District to resolve the appeals concerning venue and jurisdiction in the constitutional case. Today, though, the St. Pete Times reports here that Terri's parents have requested that a new guardian be appointed for Terri, that Jay Wolfson (who was previously appointed as a special guardian ad litem) be appointed to determine if Terri's marriage to Michael Schiavo can be dissolved, and that Wolfson be permitted to oversee swallowing tests to determine whether Terri can eat on her own.


Thursday, January 08, 2004

 
Schiavo News. I have received confirmation that Judge Baird has rotated from Pinellas County's civil bench to its criminal bench. His caseload has accordingly been transferred to the judge who now occupies Judge Baird's former civil chambers, Judge Nelly Khouzam. I do not know yet if Judge Baird has taken any special steps to retain the Schiavo constitutional challenge for purposes of ruling on the pending motions. I suppose we'll learn that soon enough.

 
More Schiavo News. Though I still do not know whether Judge Baird has kept the Schiavo case, it may do some good to point out that changes in judicial assignments are a normal part of the administration of justice. There are numerous sections in the Sixth Circuit's judicial system -- civil, criminal, probate, family, and appellate are the major ones. Judges routinely rotate through the sections. Some might say this is a good thing because it helps keep the judges from getting "burned out" on a particular subject matter. If you have ever been involved in a family law case, you can probably imagine what it would be like to be the judge in such cases every day for years. Change is good.

Judicial assignments are made by the circuit's chief judge. Here in the Sixth Circuit (Pinellas and Pasco Counties), that person is Chief Judge David Demers. Looking at the Sixth Circuit's web site, it looks as if Judge Khouzam's assignment to section 20 in place of Judge Baird was ordered back in August. Check out this administrative order from Judge Demers. If you are wondering how you can know that Judge Baird was previously assigned to section 20, check out any order he released in the Schiavo case (such as this one). You'll see that the case number at the top of the first page ends in "-20." That's the section number.

So, for those wondering if some member of the executive or legislative branch ordered a change for political reasons, rest assured that has not happened. This change was ordered back in August by the chief judge. Besides, there is a strong chance that Judge Baird has kept the Schiavo case, given its posture and his announced readiness to rule on the pending summary judgment motion.



Monday, January 12, 2004

 
Schiavo News. A fast-approaching move in early February left me cleaning, packing, and doing all sorts of related activities at home this weekend, far from the blogosphere. So while yesterday's Florida papers ran this story from the AP concerning the Terri Schiavo saga, I didn't link or talk about it.

I now have a chance. A reader wrote in this morning and asked if the story correctly mentions the "presumptively unconstitutional" remark as coming from the Second District, rather than just Judge Baird. In short, the answer is a qualified yes.

Let me back up. A few weeks ago, Governor Bush filed a motion with Chief Judge Demers to have a guardian ad litem again appointed to advise the Governor on Terri. Late last week, Chief Judge Demers denied the motion. You can read that order here.

In denying the Governor's motion, Judge Demers explained that he had already appointed a guardian ad litem once and that the guardian ad litem's report had been delivered to the Governor, as required by the new law being challenged in the Schiavo case. Judge Demers also explained that, since he first appointed the guardian ad litem, the Second District has held that the law at issue is "presumptively unconstitutional." Based on that holding, Judge Demers concluded that the reappointment motion should be denied without prejudice to it being raised again if the law is ultimately found constitutional. In other words, before even considering whether to appoint a guardian ad litem again, Judge Demers is going to wait to see if the law survives Michael Schiavo's constitutional challenge.

So, did the Second District really say that the law is presumptively unconstitutional? In a way, the appellate court did, though the context was a bit different. In this decision, the Second District found no basis to disqualify Judge Baird for having commented on what he called the law's presumptive unconstitutionality. The appellate court even appeared to agree with Judge Baird's statement, saying that it had support in the Second District's earlier decisions involving the Schiavo saga and in controlling Florida case law. The court made clear, however, that while the new law permitting the Governor to order Terri's feeding tube reinserted impinges on Terri's fundmental right to privacy, this does not mean that law is actually unconstitutional. What it means is that the burden now shifts to the state to prove that the impingement is constitutionally permissible; otherwise, the law will be found unconstitutional. That's what is meant by calling the law "presumptively" unconstitutional.



Wednesday, January 21, 2004

 
Schiavo News. Yesterday, Governor Bush told the Second District that, to defend Michael Schiavo's constitutional challenge to the new law that allowed the Governor to order Terri's feeding tube reinserted, he needs to investigate various aspects of the Schiavo case's history. The Governor is appealing Judge Baird's decision not to permit the discovery the Governor requests, which includes deposing Michael Schiavo and others. Today's Tampa Tribune has the story here.


Wednesday, February 04, 2004

 
Schiavo News
A bill prompted by the Terri Schiavo saga has hit a bump in the legislative road. The St. Pete Times reports here that this bill, which would establish a presumption that an incapacitated person does not want a feeding tube removed absent specific directions to the contrary, involves too many unanswered questions for some at this point.


Tuesday, February 10, 2004

 
Schiavo News
Senate President Jim King regrets bowing to pressure and helping pass what has come to be known as "Terri's Law." Read about it here in today's St. Pete Times.


Friday, February 13, 2004

 
Schiavo News
Today, the Second District entered an order quashing the protective order Judge Baird previously issued in the Schiavo case. The protective order prohibited Governor Bush from taking seven deposition, including the deposition of Michael Schiavo. The Second District's decision, available here, determined that Judge Baird could not prohibit the Governor from taking the depositions unless the trial court first resolved two issues: first, whether there are fact-based aspects to Michael Schiavo's constitutional challenges that may require discovery, and, second, whether the Governor is or is not precluded from relitigating facts and issues that were resolved in the earlier cases between Michael and the Schindlers. The Second District found it unclear that the trial court had resolved either issue.

What this appears to mean is that the issues surrounding discovery in the case and any possible protective order limiting discovery will need to be addressed again, and in greater detail, by Judge Baird. Anticipating that a new protective order might be entered and appealed, the Second District concluded its opinion by requiring Judge Baird to include in any such order all findings of fact and conclusions of law that support the decision.


 
More Schiavo News
The Second District today also reversed Judge Baird's order denying the Schindlers' motion to intervene in the suit between Michael Schiavo and Governor Bush. The suit is over the constitutionality of the law that permitted the Governor to order Terri's feeding tube restored. Recall that Michael has not sued Terri's parents in that case. When the Schindlers moved to intervene in the matter, Judge Baird denied the Schindlers' motion, instead allowing them to participate as amici curiae ("friends of the court"). The significance of that ruling was that the Schindlers would not be parties and could not control the litigation as parties could, though they would be permitted to offer arguments to the court on how the case's issues should be resolved.

In today's decision, available here, the Second District held that it could not tell from Judge Baird's order whether he applied the proper legal test to resolve a motion to intervene. Thus, without suggesting how the intervention motion should ultimately be decided, the appellate court reversed Judge Baird's decision and remanded for further consideration of the issue.

The bottom line here appears to be that Judge Baird will again have to rule on the Schindlers' motion to intervene -- this time in more detail.


 
And More Schiavo News
The Associated Press has thus far released two stories on this morning's decisions in the Schiavo case. They are available here and here. Both stories contain the following line:

The 2nd District Court of Appeal ruled that Bush's attorneys will be allowed to question witnesses in the court battle over a law that gave the governor authority to reinsert Terri Schiavo's feeding tube after her husband had it removed in October.
With all due respect to the AP, I do not agree. As I discussed in the post below, the Second District held that Judge Baird failed to address two issues that are fundamental to determining whether Governor Bush may properly be precluded from deposing the witnesses he wishes to depose: namely, whether any facts are material to the constitutional challenges before the court and whether Governor Bush is precluded from litigating any particular issues because they were resolved in the earlier litigation between Michael Schiavo and the Schindlers.

With regard to what I will loosely call the "relitigation" issue, the Second District's opinion today specifically explained that a protective order may be appropriate if Michael Schiavo's position is correct and may be inappropriate if the Governor's position is correct. The court explained:

If one accepted the argument of Mr. Schiavo's counsel that those facts were not properly the subject of discovery in the declaratory judgment action because they had already been finally adjudicated in the guardianship proceeding, it is arguable that taking depositions to inquire into such matters could be unduly burdensome, annoying, or oppressive. On the other hand, if one accepted the position of the Governor's counsel that the Governor is not bound by the adjudicated facts in the guardianship proceeding, it is arguable that the Governor could be denied his right to pursue discovery he believes is necessary for him to support his defense of the constitutionality of the statute.
So whether the Governor will be able to conduct the discovery he wishes to conduct will turn on decisions that Judge Baird has not yet made. Once they are made, it seems fairly likely that the matter will be appealed again by whoever disagrees with the judge's decision. So this part of the case seems a long way from being over.



Monday, February 16, 2004

 
Schiavo News
The AP has this update on the current legislative effort to address end-of-life issues like the situation in Terri's case.


Friday, March 05, 2004

 
Schiavo News
Following last month's ruling by the Second District that Judge Baird did not provide enough analysis in his order denying the Schindlers' motion to intervene in Michael Schiavo's constitutional challenge, the Schindlers have apparently renewed their motion. Read about it here in today's Sun-Sentinel. For more on the Second District's decision, see this earlier Abstract Appeal post, and to read that decision, look here.


Saturday, March 27, 2004

 
Schiavo News
Today's Sun-Sentinel has an update on a hearing held yesterday before Judge Greer in the Schiavo saga. According to the story, available here, Judge Greer is contemplating further hearings to detemine whether Michael Schiavo is violating a court order to share information on Terri's condition with her parents.


Tuesday, March 30, 2004

 
Schiavo News
Terri Schiavo was taken to a hospital yesterday because of puncture wounds in her arm, according to this story in today's St. Pete Times. At the moment, the source of the wounds is apparently unknown.

 
Schiavo News
The AP has the latest news in the Schiavo case here. The report covers two fronts. First, the cause of the puncture marks recently discovered on Terri's arms is still unknown. Second, and this isn't entirely clear to me, it appears Judge Greer yesterday denied a request by the Schindlers for further, perhaps evidentiary, hearings on the issue of whether Michael Schiavo should be held in contempt for failing to share information on Terri's condition with her parents. Such sharing is required by a longstanding court order.


Wednesday, March 31, 2004

 
Schiavo News
Today's St. Pete Times has this update on Terri Schiavo's arm wounds. Apparently, the source of the wounds is still unknown.

More Schiavo news to come later this morning…


 
More Schiavo News
As some of you know, or could guess, moving to a new place and a very busy work schedule the past two months have made it tough for me to follow the trial court proceedings in the Schiavo matter. I'm going to try to catch up and provide some explanations on what seems to be going on.

We've had news recently on two fronts, one involving the Schindlers' motion to intervene before Judge Baird, and the other involving the Schindlers' motion asking Judge Greer to find Michael Schiavo in contempt of court. The Schindlers lost both motions. This post will address the latter item.


Here goes:

Back in 1996, Judge Penick entered an order in the guardianship proceedings that, among other things, required Michael Schiavo (1) to notify any nursing home caring for Terri that he has no objection to the nursing home discussing Terri's condition with the Schindlers, and (2) to inform the Schindlers of any "significant changes" in Terri's medical condition. You can read that order here.

Last month, the Schindlers filed a motion asking Judge Greer (who now has the guardianship case) to find Michael Schiavo in contempt of court for failing to comply with the 1996 order. The motion, which is available here, relates the following: (1) Michael has not given the Schindlers a written notification from him to the nursing home where Terri currently resides saying that the caregivers there may speak with the Schindlers; (2) on February 14 and 15, 2004, Terri vomited; and (3) Mary Schindler was told by Terri's nurses and physician that Michael will not permit them to discuss Terri's condition with her. The motion concludes by requesting that Michael Schiavo be held in contempt of court. The motion is signed by Mary Schindler, who swore its facts to be true, and the Schindlers' attorney, Pat Anderson.

A Florida judge has the inherent authority to punish persons , typically through imprisonment, for contumacious actions committed either within or outside the judge's presence. Contumacious acts are those that offend the authority of the court or interfere with the administration of justice.

Where a contumacious act occurs in the actual presence of the judge, and as a result the judge has firsthand knowledge of it, the form of contempt is referred to as direct contempt. Where the action takes place outside the judge's presence, and therefore the judge must determine that the supposedly contumacious act in fact took place, the form of contempt is referred to as indirect contempt.

Contempt is always serious. Where the point of a contempt proceeding is to punish a person (as opposed to getting the person to comply with an order), the offense is generally considered criminal contempt, and the same sort of protections that apply to an accused in a criminal case generally apply to the alleged contemnor.

Here, the Schindlers asked that Michael be found in criminal contempt -- they asked to have him punished. Typically, that means jail.

To help ensure that an accused, like Michael, receives due process, Florida's Rules of Criminal Procedure set out the procedure for handling criminal contempt proceedings. The proceeding begins when a judge issues what is called an order to show cause, and Rule 3.840(a) has this to say about when such orders may be entered:

The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.
Under this rule, a criminal contempt proceeding may begin when the judge acts either on his or her own motion or on the testimony of any person. As if the emphasized language isn't clear enough, in the case of a person's testimony, Florida case law requires that the testimony be sworn and that the witness have personal knowledge of the facts.

Judge Greer denied the Schindlers' motion, and you can read that order here. The order states that affidavits were submitted to the court by Mary Schindler and Heidi Law, and neither affidvait relates facts, based on personal knowledge, showing that Michael Schiavo violated the 1996 order.

Did Judge Greer get that right? I don't know. The judge refers to two affidavits -- a March 23, 2004 affidavit by Mary Schindler and an affidavit by Heidi Law. I have not seen either document. If anyone has copies of them or, better, links to them, please let me know. In the meantime, I can offer two comments: the sworn motion that Mary Schindler signed does not appear to satisfy the rule's requirements, and the judge's reason for denying the Schindlers' motion is certainly a valid one under the law.

So that's the scoop, from my perspective.


 
Still More Schiavo News
A reader has emailed me links to Mary Schindler's affidavit (here) and Heidi Law's affidavit (here). I now understand Judge Greer's decision.

Update: The Heidi Law affidavit referenced above was apparently not the one used in connection with the contempt motion. This one was. (And, yes, I still see why the judge ruled what he did.)


 
Still More Schiavo News, Part II
The blitz of Schiavo-related posts today wouldn't be complete without linking this story from today's Tampa Tribune.


Thursday, April 01, 2004

 
Schiavo-Related News?
I'm not sure if the Dr. William Hammesfahr who is the subject of this decision from the Second District is the same doctor well known to those who support Terri Schiavo's parents. Perhaps he is.


Friday, April 02, 2004

 
Schiavo News
On Wednesday, a reader emailed me links to affidavits by Mary Schindler and Heidi Law, and I posted them here. Now the helpful reader has emailed again, letting me know that Heidi Law swore a second affidavit, and it was this second one, not the first, that was used in connection with the Schindlers' contempt motion. The second affidavit is available here. I've updated the earlier post, too.




Tuesday, April 20, 2004

 
Schiavo News
The AP has this update on the Schiavo saga. Judge Baird held a hearing yesterday to decide whether Governor Bush's attorneys should be able to question Michael Schiavo about his motives in wanting his wife's feeding tube disconnected. Michael takes the position that such matters are irrelevant to his constitutional challenge to the law that permitted the Governor to order Terri's feeding tube reconnected. The Governor apparently believes Michael's motives are "central" to the case. The court took the matter under advisement.


Friday, April 23, 2004

 
Schiavo News
The Terri Schiavo saga is about to pick up steam, again. The Second District has just issued its latest opinion in this series of cases. The decision, which you can read here, rejects Governor Bush's efforts to dismiss Michael Schiavo's pending constitutional challenge on procedural grounds.

Let me back up. You may recall that, last year, the Florida Legislature passed a law that permitted the Governor to order Terri's feeding tube reinserted. The Governor did so, and Michael Schiavo immediately sued the Governor in Pinellas County circuit court to declare that law unconstitutional. The Governor argued that the case should be dismissed for two reasons. First, the Governor argued that he had not been properly served with the suit papers. Second, the Governor argued that the suit was improperly brought in Terri's home county (Pinellas) and should have been brought in his home county (Leon).

Judge Baird rejected the service of process argument because the Governor's attorney appeared in the case on the day it was filed and argued on the Governor's behalf without ever raising an issue about service. Judge Baird thus found the service issue was waived.

Judge Baird rejected the venue argument because, while state actors are supposed to be sued in their home counties, there is an exception when the state actor has affirmatively taken action against the plaintiff in another county and the plaintiff sues there to defend against that action. This exception is called the "sword-wielder doctrine," and the idea is that where the state wields its power against you like a sword, you may sue where you have been affected and not have to travel to the state actor's home county to sue. Judge Baird found that ordering Terri's feeding tube reinserted fell within the sword wielder doctrine and thus venue in Pinellas County was appropriate for Michael's constitutional challenge.

In today's opinion, the Second District agreed on both points and affirmed Judge Baird's decisions.

You may recall that the trial court case has continued, to a point, while Governor Bush pursued his appeal of the service of process and venue decisions. Judge Baird has heard Michael Schiavo's motion for summary judgment in the case but decided to wait for the Second District to rule on the procedural challenges before announcing his decision. This was prudent -- had the Second District decided that Judge Baird lacked jurisdiction over the Governor or that the case should be tried in Tallahassee, then it would be pointless for Judge Baird to have addressed the merits of the case. Now, however, the Governor's challenges have been addressed and resolved in favor of the case remaining with Judge Baird. He is free to rule.

Expect to hear Judge Baird's decision on the summary judgment motion soon.



Saturday, April 24, 2004

 
Schiavo News: A Little Help With the Lingo
A reader recently asked me to explain some commonly used legal terms. Because other nonlawyers may wonder what these terms mean, and because they have all been used on Abstract Appeal in the course of discussing the Terri Schiavo saga, I thought I would post my responses on the blog:

"with or without prejudice" -- These terms are used to describe whether a judicial decision is binding with regard to the merits of a legal issue. When a case is resolved without reaching the merits of a question, the court will make its decision "without prejudice" to the person's ability to raise that question in another proceeding. When a case is resolved by deciding its merits, the decision is said to be "with prejudice," and it will be binding on the court that made the decision and all lower courts. A nonlegal example of a decision without prejudice might be if you need to request time off from work and your employer requires you to use a specific form, which you do not use. The employer might reject the request, but not because you cannot have the time off -- because you did not use the right form. Get the right form, and try again. If your request is then denied, it might be thought of as being denied "with prejudice," meaning the merits of the issue you raised have been resolved and will not be revisited.

"res judicata" -- This is a somewhat complicated legal doctrine that civil procedure professors in law schools spend many classes discussing in detail, and its application under Florida law differs in important respects from its application under federal law. Still, in most cases, the meaning of res judicata can be reduced to the notion of "with prejudice" described above: when a court has ruled on the merits of a dispute involving particular parties, the court's decision is binding on those parties, unless it is overruled by a higher court. The decision is said to be res judicata, and it cannot be relitigated.

"writ of certiorari" -- This is a term that is often used very loosely by lawyers and judges. A writ of certiorari is a particular type of order that certain courts are authorized to issue under certain circumstances. It is always issued to a lower court with regard to a particular decision made by that lower court, and it functions by undoing that particular decision. It is procedurally different from an appeal, but the point is the same from the standpoint of the person petitioning for the writ: you want a higher court to reverse a lower court's decision. If you read legal sites like Abstract Appeal, you will somewhat regularly hear about parties requesting (or, more accurately put, "petitioning for") a writ of certiorari, or "cert." In Florida, certiorari petitions are most often used to obtain relief while a case is still going on in a trial court, before the final appeal. In the federal realm, you most often hear about certiorari petitions in the context of final appeals to the United States Supreme Court, which grants the writ when it decides to hear a case.

"amicus curiae" -- This is a Latin term for "friend of the court." It is a status given to a person whom the court permits to make arguments regarding a legal issue in a case, though almost never a factual issue, even though that person is not a party in the case. Amicus curiae briefs are most often seen in appellate courts, where persons who may later be bound by a particular decision attempt to help the court reach the "right" decision. Amici are not parties to a case. They cannot be held liable for anyone else's costs or fees and they cannot participate in fact discovery.

"intervene" -- A lawsuit typically involves people who sue (plaintiffs) and the people they sue (defendants). Sometimes other persons want to be involved in the case as parties. They can attempt to enter a lawsuit, either as another plaintiff or another defendant, by moving to intervene. There are strict legal requirements that apply to intervention. Whereas someone can often be accepted as an amicus curiae based on a very informal interest in a case, it is very difficult to meet the requirements to intervene as a party.

"estoppel" -- This is another somewhat complicated legal concept. In short, it refers to how the law prevents someone from raising a particular legal argument, either because that particular argument has already been decided for that person or because the person has acted in a way that would make it unfair for the argument to be entertained by a court.

"colorable" -- When used to describe a claim, colorable means plausible. It is a very low standard in the sense of merit. A colorable claim is one that may be valid or may not be, but it is at least not wholly frivolous.





Wednesday, April 28, 2004

 
Schiavo News
Today's St. Pete Times has this update on the disagreement between Terri's husband and her parents over visitation. Michael Schiavo has apparently prohibited visitation with Terri while police investigate strange needle-like marks found on her arms last month. Terri's parents have apparently filed a motion asking Judge Greer to order visitation.


Thursday, May 06, 2004

 
Schiavo News
This afternoon, the AP reported here that Judge Baird has declared "Terri's law" unconstitutional. According to the story, the judge ruled the law unconstitutional based on Terri's right to privacy and because it "delegated legislative power to the governor."

The ruling itself is available here (from Terri's Fight) and here (from FindLaw). I will offer some extensive thoughts on this order late tonight.



Friday, May 07, 2004

 
Schiavo News
I can tell from the emails sent in to Abstract Appeal since yesterday evening that folks out there are interested in numerous angles on Judge Baird's recent decision: what it says, what it means for Terri now, how it is affected by the pending guardianship proceedings, what happens next, etc. I will try to balance addressing these concerns in some detail with not creating a tome that is difficult to digest.

First, let's talk about where things are. Remember that there are two separate cases being litigated. The first is the guardianship case (discussed thoroughly on the Terri Schiavo Information Page). That's the case currently before Judge Greer, in which the court held a trial years ago to determine Terri's wishes and concluded, in February 2000, that Terri would not wish to continue receiving nurishment through a feeding tube in her present condition. That decision was upheld after numerous appeals by Terri's parents, who were (and remain) on the other side of Michael Schiavo in that case. That decision also withstood a second trial before the guardianship court, in which the Schindlers were given a chance in October 2002 to prove that some new medical technology or treatment had come along that, if Terri knew about, would make her change her mind about whether to continue receiving the feeding tube. The court found that nothing new would change Terri's mind. The Schindlers appealed that decision, but it was also upheld at every level. The guardianship case is still being litigated. Terri's parents are still persuing various means to disqualify Michael Schiavo as Terri's guardian. Unless those pursuits are successful, and thus far they have not been, they will have no bearing on the second case -- the constitutional challenge.

The constitutional challenge began last year, after the Legislature enacted what has come to be known as "Terri's Law." Despite the judicial branch's decisions that Terri would not want to receive a feeding tube in her condition, and the removal of that tube in accordance with Terri's judically-determined wishes, the new law authorized the Governor to order a feeding tube inserted into Terri or anyone else who met the law's very-Terri-like criteria. The law was in effect for only 15 days, and during that time, Governor Bush ordered Terri's tube reinserted. Michael Schiavo then challenged the Governor's actions and the new law as unconstitutional. That case was assigned to Judge Baird. It has gone on for over six months with various procedural issues receiving the most attention, but yesterday Judge Baird issued a ruling (available here) in favor of Michael Schiavo on the merits of his challenges. Judge Baird ruled Terri's Law unconstitutional.

Without regard to any particular constitutional right or requirement, there are two ways a law can be unconstitutional, and Judge Baird's order found Terri's Law unconstitutional under both. The first way is what lawyers refer to as "facial" unconstitutionality, as in "the law is unconstitutional on its face." Though the term might seem peculiar, it is quite accurate. It means that by just reading the law, without having to rely on how it operates in any particular case, you can tell that it necessarily conflicts with controlling constitutional principles and is therefore invalid.

Judge Baird found Terri's Law unconstitutional on its face based on two constitutional principles: separation of powers and the right of privacy. The separation of powers principle itself consists of multiple principles, one of which is that, simply put, the Legislature cannot give someone else unbridled discretion to do or not do something significant. Take, for instance, a driver's license. The Legislature could not enact a law that authorizes the motor vehicles department to give licenses out whenever the department feels like doing so, or to take licenses away whenever the department wishes. There must be standards that the executive branch person (or municipal person) must follow, or else the executive branch person making the decision has in effect become a mini-Legislature, making the law up as he or she goes.

Michael Schiavo argued that Terri's Law gave Governor Bush unbridled discretion regarding how to apply that law to any particular person. Judge Baird agreed.

The right of privacy is a constitutional right existing under both federal law and Florida law. Florida's courts have repeatedly held that the right under Florida law is more expansive, and more protecting of privacy, than the federal law. The right basically says that you have the right to be left alone from governmental intrusions into your private life. Now, that is a broad principle not easily applied in particular contexts, but here the task is a bit easier because the Florida Supreme Court has previously decided that Florida's right of privacy gives all Florida citizens the right to refuse medical treatment. That court has also determined that medical treatment includes the use of a feeding tube and that, where a person is too incapacitated to make or reveal a decision about medical treatment, another person can step in as the incapacitated person's proxy and determine what decision the incapacitated person would make.

Michael Schiavo argued that Terri's Law violated Terri's right of privacy. Now, that might seem like an odd argument, in the sense that Terri's Law was enacted because certain people believe she may not want to die, and thus it can seem strange to say that she cannot be kept alive as she would wish based on her own right to privacy. But that way of thinking sidesteps the proper legal analysis. Terri, like all Florida citizens, has a constitutional right to make up her own mind (or have another determine how she would make it up), and Terri's Law permits the Governor to order a feeding tube to be inserted or remain in place regardless of the individual's wishes. Importantly, the Governor did not disagree that, in this sense, the law intrudes on a person's right to privacy. The Governor argued, though, that the intrusion was a permissible one because it allowed him to protect a person's life. Judge Baird rejected that argument, relying on prior Florida Supreme Court case law to say that the state's interest in preserving life was not sufficient to ignore the individual's wishes regarding medical treatment.

The second way that a law can be unconstitutional is what lawyers refer to as an unconstitional application, as in "that law is unconstitutional as applied to my client." This occurs where a law may be facially constitutional because it can be constitutionally applied in some cases, but it cannot be constitutionally applied under the particular facts of the case before the court. Here, Michael Schiavo argued that Terri's Law was unconstitional as applied to Terri based on numerous constitutional principles, and Judge Baird agreed with regard to two of them.

The first "as applied" challenge ruled on by the judge was based on another separation of powers principle: the notion that the Legislature may not intrude into the judiciary's decisionmaking in a particular case. Judge Baird concluded that Terri's Law improperly amounted to a legislative overruling of the judiciary's final decision about Terri's wishes.

The second "as applied" challenge ruled on by the judge was based on the due process concept that legislation should not be retroactively applied to a situation where a person's rights have already vested. This can get a bit complicated, but the short of it is that where the law recognizes past events give you a certain right, that right cannot be taken away. Here, Michael Schiavo argued that Terri's decision about whether to receive a feeding tube had already been made and put into effect, and thus it was too late for the Legislature to pass a new law making that decision ineffective. Judge Baird agreed.


Stepping back from it all, I am a little surprised that Judge Baird's order was as short as it was. He did not address a handful of significant arguments that will need to be resolved in favor of Governor Bush if the Governor is ultimately to win this case. Judge Baird has apparently decided that he has addressed enough arguments to doom Terri's Law, and if he is wrong on all of them, then he can address the others later.

The news media have reported that Governor Bush immediately began the process of appealing Judge Baird's order. While the appeal proceeds, the status quo will remain in place, and Terri will continue to receive nurishment through her feeding tube.

The Governor's appeal will be to Florida's Second District Court of Appeal. Because the Florida Supreme Court is required under the Florida Constitution to review district court decisions declaring state statutes unconstitutional and permitted to review decisions declaring state statutes constitutional, it is possible that the Second District may immediately ask that court to review Judge Baird's decision now, eliminating one level of review and speeding up the appellate process. Either Michael Schiavo or Governor Bush might ask the Second District to do that, too. I will write more on this if it becomes an issue.

Suffice it to say, at this point, that this case could be decided by the Florida Supreme Court before it is over, but it appears unlikely that the case will ever go any further. The United States Supreme Court does not usually agree to hear cases that are very much based on state law, and nearly every legal principle at issue in this case is based on Florida's Constitution and other Florida law. It is not impossible that the case will be heard by the United States Supreme Court, and the odds of that court hearing the case certainly get better if Michael Schiavo loses in the Florida courts, but at this point it is probably most accurate, as guesses go, to guess that when Florida's courts are done with this case, the losing side will ask the United States Supreme Court to review it, and the nation's highest court will decline to do so.

Back to the present, Governor Bush is appealing Judge Baird's decision to the Second District. The briefing stage of that process will take months to complete. Expecting a decision from that court in 2004 would be extremely optimistic, and, of course, there will be further proceedings once the Second District has completed its work in the case. There is a long road ahead. I will continue to try to inform Abstract Appeal readers of what is happening without taking sides. Stay tuned.





Saturday, May 08, 2004

 
Dilemma
Over the course of the Terri Schiavo saga, I have at times wandered, virtually speaking, into the various sites and fora where well-intended folks are discussing, sometimes rather passionately, the events surrounding this case. I have done that quite a bit the last couple of days, and I must say, I am left in a quandary. Let me explain. As someone who devotes his life to studying and, in many senses, promoting the law, I always appreciate hearing how more casual legal observers view the law and the legal system, and yet it affects me when I see people embrace a legal view that, while sincerely held, is misinformed. I'm presently debating whether I can help things by trying to explain more of the legal concepts at issue here, and if so, which ones to focus on.



 
Schiavo News
The latest report on the Schiavo saga is available here, from the Tampa Tribune. The story discusses how Michael Schiavo's attorneys are unsure whether or when they might ask the courts to lift the automatic stay on Judge Baird's recent ruling. That ruling, discussed at length in this post, held "Terri's Law" unconstitutional and enjoined Governor Bush from taking any action under the authority of that law.


Monday, May 10, 2004

 
Schiavo Thoughts
I really appreciate the many emails I received over the weekend, encouraging me to explore further the misperceived legal issues in the Schiavo case. Some of you even made suggestions on what issues to examine. I've come to think I can do more good than harm by looking at the case in a bit more legal detail.

The risk, of course, is alienating or offending people who see certain legal views as "favoring" one side or another in the case. I will do my best to leave that risk unrealized.




 
Schiavo News
This weekend, I linked a news story about how Michael Schiavo's attorneys seem equivocal about whether they will at some point ask for the automatic stay to be lifted during the appeals process. After mulling it over for a couple of days, I still do not understand what basis exists to believe there is any chance the automatic stay could be lifted in this case.

Under Florida's appellate rules, public officers obtain an automatic stay of a lower court's order when they invoke a Florida court's appellate jurisdiction. There are various reasons for this, but suffice it to say that a stay generally serves the public interest by maintaining the status quo until the appellate court can review the decision being appealed. The lower court or the appellate court may vacate the automatic stay, but this will only happen upon request, and then only if the court deems that result to be just.

Assuming Governor Bush has a basis for invoking a Florida court's appellate jurisdiction in this case, whether the court be the Second District Court of Appeal or the Florida Supreme Court, it is difficult to believe that any court would grant a motion to vacate the automatic stay. Vacating the stay would render the appeal moot, since enforcing the trial court's order would, in short order, result in Terri's death. Expect the stay to stick around.



Wednesday, May 12, 2004

 
Schiavo News
Today's St. Pete Times has this story on the Schindlers' latest motion in the guardianship case. The motion seeks to compel Michael Schiavo to permit the Schindlers visitation with Terri. Michael has agreed to visitation, but since the incident in March where needle-type marks were found on Terri's arms, Michael has required that Terri's parents be accompanied by a security officer paid for by them.

The Terri's Fight site has posted a copy of the Schindlers' motion. It's available here. You will notice it is labeled an "emergency" motion. You may also notice that the accompanying Terri's Fight press release indicates that Judge Greer has already determined he will not treat the motion as an emergency motion.

That seems appropriate. What constitutes an emergency is generally a judgment call made on a case-by-case basis, but my experience has been that most courts will not consider something to be an emergency unless some substantial harm will occur if action on the matter is delayed. Florida appellate attorneys are probably familiar with the Eleventh Circuit's published standard for what constitutes an "emergency":
Except in capital cases in which execution has been scheduled, a motion will be treated as an emergency motion only when both of the following conditions are present:
1. The motion will be moot unless a ruling is obtained within seven calendar days; and
2. If the order sought to be reviewed is a district court order or action, the motion is being filed within seven calendar days of the filing of the district court order or action sought to be reviewed.
In other words, circumstances must be such that a week's delay will moot the issue, and the moving party must not have merely waited to file the motion until the week before mootness is about to occur.

Regarding the Schindlers, who wish to visit Terri without complying with Michael's demand for paid security, Judge Greer has apparently determined that no "emergency" exists. He will therefore hear the Schindlers' motion in the ordinary course.



Monday, May 17, 2004

 
Schiavo News
While I was busying myself this weekend with non-blog activities, the Terri Schiavo saga took a couple more steps forward. There were two developments.

First, the Clearwater Police Department wrapped up its investigation of the needle-like marks found in March on Terri's arms, concluding that the marks were of an unknown origin and that the evidence did not suggest they were the result of a crime.

Second, the Second District issued an order directing Michael Schiavo and Governor Bush to explain why the appeal in the constitutional challenge should not be immediately certified to the Florida Supreme Court.

Each development is interesting. You can read about them in this story in the St. Pete Times and this story from the Tampa Tribune. You can also read the Clearwater Police Department's press release here.

As for the investigation, you may recall that, since the marks were discovered, Michael Schiavo has not allowed the Schindlers to visit Terri without a guard present and paid for by them, and that the visitation disagreement has resulted in a motion by the Schindlers in the guardianship case to permit unsupervised visitation. Judge Greer is scheduled to hear that motion later this month. It seems much if not all of the motion could be mooted if Michael would begin allowing visitation now, but this story suggests that he has not yet changed his position against unsupervised visitation. I do not know Michael's reasons for continuing to demand only supervised visitation.

Regarding the Second District's order, this is an unusual step, generally speaking, but not one that was totally unforeseeable in this case. Florida's district courts of appeal can certify appeals of trial court decisions for immediate resolution by the Florida Supreme Court where a district court believes that the issues in the case are either of great public importance or have a great effect on the proper administration of justice throughout the state. The Second District has not done that, though -- at least not yet. Instead, the court has simply asked the parties to offer, within 10 days, any reasons why the case should not be certified. Whether the court will actually certify the case still remains to be seen.

Also, if the Second District certifies the case, that does not mean that the Florida Supreme Court must immediately hear the case. The Florida Supreme Court has complete discretion to determine whether hear a certified case, and that court has previously turned back efforts by the district courts to certify cases for immediate resolution.

So, what's changed? Nothing yet. We will wait until the parties' responses are submitted to the Second District and then see if a certification results. I will not be surprised with the result no matter what it is. There is no argument that the Schiavo constitutional case has a great effect on the proper administration of justice throughout the state. Thus, the issue boils down to whether the case is seen by both the district court and the supreme court as one involving "great public importance." That characteristic, like beauty, is in the eye of the beholder.


 
More Schiavo News
The AP is reporting here that Michael Schiavo is continuing his policy of permitting the Schindlers to visit Terri only if they hire a guard to oversee their visits. According to the story, Michael believes the circumstances surrounding the marks found in Terri's arms back in March are suspicious enough, and the Schindlers prior conduct in videotaping Terri in violation of a court order was serious enough, to justify continuing the policy.

The Schindlers have filed a motion challenging Michael's visitation policies. That motion is scheduled to be heard by Judge Greer on May 26.



Thursday, May 20, 2004

 
Schiavo Thoughts
Someone recently asked me if I had any insight into how someone came up with a statement that 19 judges had ruled in favor of Michael Schiavo's request to withdraw Terri's feeding tube. I thought I'd share the pertinent portion of my response. It's a bit long and rather informal:


I would not make any sort of statement regarding how many judges have ruled in someone's favor in this case. There have been so many cases, so many issues, and the question of "what does lack of jurisdiction mean?" is so complex, that it is very difficult to say anything meaningful here in a concise way.

I'll try to show you why:

Judge Greer ruled in Michael's favor in the original decision on whether Terri would choose to keep or remove her feeding tube under her present circumstances. That ruling was upheld by a three-judge panel of the Second District (Judges Altenbernd, Parker, and Blue), and the Florida Supreme Court denied review (Justices Harding, Lewis, Pariente, Anstead, and Quince) for lack of jurisdiction. The decision that the court lacks jurisdiction to take the case is not one on the merits of the case, so I wouldn't count these five if you're talking about the merits of the case.

Next, Judge Quesada ruled in favor of the Schindlers when they sought to enjoin the removal of Terri's feeding tube, but the Second District (Judges Altenbernd, Parker, and Blue) effectively reversed that decision by ordering the case transferred to the guardianship proceeding before Judge Greer. I'm not sure what category the Second District's decision goes in, but Judge Quesada did not rule in Michael's favor.

Separately, Judge Greer ruled against the Schindlers when they sought relief from the earlier judgment. That decision was affirmed in part and reversed in part by the Second District (Judges Altenbernd, Parker, and Blue) in the appellate case that ordered the Judge Quesada case transferred, so I'm still not sure what category this decision goes in.

Next, Judge Greer ruled against the Schindlers on their motion for relief from judgment. That decision was reversed on appeal by the Second District (Judges Altenbernd, Parker, and Blue).

Next, Judge Greer held a trial and ruled against the Schindlers on the merits of their motion for relief from judgment. The Second District (Judges Altenbernd, Fulmer, and Stringer -- FYI: by now, Judge Parker had passed away and Judge Blue had retired to private practice) affirmed that decision, and the Florida Supreme Court (Justices Anstead, Wells, Lewis, Pariente, Quince, Cantero, and Bell) again denied review based on a lack of jurisdiction.

The Schindlers also filed two federal cases, one before Judge Lazzara and one before Judge Merryday. Both cases were dismissed on procedural grounds. As with the Florida Supreme Court's decisions, I do not consider those to be rulings in favor of Michael Schiavo on the merits of the feeding tube issue.

After Terri's law was passed, Michael's constitutional challenge landed before Judge Baird. He recently ruled that the law is unconstitutional.

Governor Bush filed an appeal during the constitutional challenge regarding some procedural issues, and he lost before the Second District (Judges Davis, Fulmer, and Wallace), but I don't see how that could count here. It had nothing to do with the merits of the constitutional challenge. Governor Bush also filed an original proceeding in the Second District regarding some discovery issues in the constitutional case, and he won (Judges Wallace, Fulmer, and Davis) but that didn't have anything to do with the merits of anything either. Governor Bush also filed an original proceeding in the Second District to disqualify Judge Baird, and the Second District rejected that petition (Judges Wallace, Fulmer, and Davis). That was arguably a win for Michael but it had nothing to do with the merits of the feeding tube issues or the constitutional challenge.

Separately, Terri's parents sought to intervene in the constitutional challenge. That motion was denied by Judge Baird, but on appeal the Second District (Judges Davis, Fulmer, and Wallace) reversed that order on the basis that specific findings needed to be made. That was sort of a win for Terri's parents, but a weak one since Judge Baird could reach the same result with more specific findings (as he later did), and in any event this had nothing to do with the merits of the feeding tube issue.

By my count, 6 judges ruled in Michael Schiavo's favor on the merits of the "what would Terri do?" issue -- Judges Greer, Altenbernd, Parker, Blue, Fulmer, and Stringer. One judge has ruled in Michael's favor on the constitutional challenge -- Judge Baird. Let me put this carefully: That's 7 judges who have directly determined, or upheld the merits of the decision, that Terri Schiavo would not wish to continue receiving her feeding tube under the present circumstances. Eight Florida Supreme Court justices ruled against getting involved in the case because the earlier decisions did not create a conflict in Florida's case law, and two federal judges decided they could not get involved in the case because the federal district courts have no ability to overrule state court decisions. Judges Wallace and Davis were involved in decisions that went for and against Michael, but those decisions had nothing to do with the merits of the feeding tube decision or the constitutional challenge.

So, we have 19 judges who at some point made rulings Michael Schiavo supported, but that's a very empty statement ...



Thursday, May 27, 2004

 
Schiavo News
Judge Greer held a hearing yesterday regarding the Schindlers' visitation concerns. You may recall that, for the last two months, Michael Schiavo has permitted them to visit Terri only if they are supervised, such as by a security officer paid for by them. The Schindlers have refused to agree to that condition and asked Judge Greer to overrule it.

According to this story in today's St. Pete Times, at the hearing, Judge Greer ruled that the Schindlers may have a 90-minute visit that "need not be supervised," and he will soon issue a full written order on the matter.

The story also indicates that the parties are now bickering over whether Judge Greer's temporary visitation order requires the 90-minute visit to be unsupervised or whether Michael could have someone else present to observe if he chooses.



Tuesday, June 01, 2004

 
Schiavo News
Well, this is more opinion than news. Below is an email I received today from a reader who wanted my reaction on an Internet petition to impeach Judge Greer. My response follows.

Reader Email:
I know that something similar like this was used to get to get Governor Bush involved in the Terri Schiavo case. Now, it appears they are going about it on a different route. Would a petition of this sort carry any weight into impeaching Judge Greer? and would you care to comment on any of the 30+ transgressions?

www.petitiononline.com/ijg520/petition.html
My response:
I will comment on how sad that petition is. Judge Greer is an honorable public servant who does not deserve such treatment.

Our judicial system utilizes a system of checks through the appellate process, and the bottom line is that Judge Greer's rulings have been repeatedly affirmed on appeal. Most of what I see in that list I do not think the Schindlers have argued in court, let alone on appeal, which says much about the merits of those allegations.

Some of those allegations are so legally baseless that they are amusing.

As for the points in the list that the Schindlers have previously raised on appeal, those arguments have been rejected, which definitively resolves their merits as nonexistent. In that sense, the petition may just as well name the Second District judges who affirmed Judge Greer's decisions and the Florida Supreme Court justices who found the Second District's decisions not to be in conflict with prior precedent. Judge Greer has not been a lone wolf here -- he has made his decisions, and all sides have had, and will continue to have, every chance to challenge his findings and conclusions on appeal.

I suppose the people who authored that petition and who support it are comforted by their actions, but that does not make their allegations of error and misconduct correct. I wonder if any of those persons has a law degree, with the education and training to opine on what constitutes a violation of the law or the canons of judicial conduct. I suspect I know the answer.

I understand your comment about Governor Bush, but he did not become involved in this case because of anything similar. He became involved because numerous persons asked him to do something, and he responded to those requests by advancing the bill that eventually became "Terri's Law." I have never heard Governor Bush state that Judge Greer has violated the law or the canons of judicial conduct in any way.

To answer your question about whether this will carry any weight, I am confident the answer is no. None whatsoever.

Let me clarify that all this does not mean that I believe Judge Greer has been correct in every decision he's made in this case. What it means is that his decisions have thus far been determined by higher courts to be consistent with the law of Florida. Attacking him -- with a petition for impeachment, no less -- is simply absurd.

How very sad. Thanks for sharing it with me, though. It's good to be aware of what's going on, even if it's depressing to hear.


 
Schiavo News
Today, the Second District entered an order sending the constitutional challenge to "Terri's Law" to the Florida Supreme Court. You can read the AP's report on the certification here. The order itself does not yet appear to be available online.

Let me try to explain what's going on. Michael Schiavo has sued Governor Bush over Terri's Law. Michael claims that Terri's Law is unconstitutional for numerous reasons, and last month, in this order, Judge Baird agreed with several of Michael's arguments. Judge Baird accordingly declared the law unconstitutional. The case was filed in the Pinellas County circuit court, and appeals from that court are generally heard by the Second District Court of Appeal, which is one of five such district courts geographically spread across Florida. Governor Bush appealed Judge Baird's decision to the Second District.

Florida's appellate rules permit a district court of appeal to send a case straight to the state supreme court when the district court believes the case to be of great public importance or to have a great effect on the proper administration of justice throughout the state. According to the AP story, the Second District today entered an order making exactly that sort of certification and citing both grounds.

Frankly, I am a bit surprised to hear that the Second District characterized the case as having a statewide effect on the proper administration of justice. As for the "great public importance" characterization, that trait is, as I have said before, like beauty -- its presence is wholly dependent on the eye of the beholder.

Importantly, while the Second District's order sends the case to the state supreme court, the high court need not keep the case. The Florida Supreme Court has complete discretion over whether to hear the case now or send it back to the Second District for a decision. In other words, the supreme court can decide that the case is not one of great public importance, or even if it is, the court can decide that it would like the Second District to decide the case at this time.

I'm not taking bets on how that turns out.

A couple more thoughts:

First, the AP story linked above indicates that the Second District's certification was the result of a motion by Michael Schiavo. I do not believe that to be correct. Instead, I believe that the Second District issued the certification on its own motion. Michael simply agreed with that course.

Second, the AP story also mentions that Governor Bush has filed a motion to halt the entire appellate process while Michael Schiavo's status as Terri's guardian is litigated in the separate guardianship case before Judge Greer. I suspect that the motion will either be denied as moot in the Second District, giving the Governor leave to refile it in the supreme court, or the motion will simply make its way to the supreme court. I also suspect that Michael Schiavo's opposition to that motion should be entertaining -- it will no doubt accuse the Governor of doing all he can to delay the final resolution of this case.

If I spot copies of these documents online, I will post links to them.



Friday, June 04, 2004

 
Schiavo News
Over the last few days, I have received a very interesting mix of reactions to my earlier post on the Internet petition to impeach Judge Greer. Some have been very complimentary, while others have accused me of defending an indefensible judge. I appreciate the folks who took the time to ask sincere questions about the situation, rather than simply to flame me on a message board somewhere.

It's a bit frustrating that some folks do not understand that I'm not actually defending Judge Greer's rulings or the propriety of him sitting on the Schiavo case. Ultimately, my point is that those are matters that can and should be addressed not in an impeachment proceeding but through the appellate process, where the decisions are in the hands of appellate judges. As I put it in an email I sent this morning to a reader:

Impeachment is a harsh and constitutionally important matter. It is intended to be a remedy for misconduct, not for mistakes in legal decisions or for having an unpopular philosophy. Legal mistakes or misjudgments should be corrected through the appellate process, and under no circumstances should a judge be impeached based on legal rulings that have been affirmed. Since our trial judges in Florida are elected, personality issues or philosophical concerns can be addressed at the ballot box.
I encourage everyone to take an interest in the law and have an opinion on it. That's part of the purpose of this web log -- to help inform people about what's going on in Florida law. I also encourage people to trust the legal system in Florida. It is filled with fine judges at all levels, and while mistakes are made, the system almost always corrects them.



Monday, June 07, 2004

 
Schiavo News
Well, I'm sure most persons interested in the Terri Schiavo saga have heard by now that, on Friday, Judge Greer entered an order that restored the Schindlers' ability to visit with Terri. You can read the order here, thanks to the folks at Terri's Fight, and you can read about the order in this story from the weekend's St. Pete Times.

For those who are only casually following this case, this most recent order was entered in the guardianship case, where Terri's parents and her husband continue to wrangle over Terri's care and her parents' ability to visit her without supervision. This order has nothing to do with the separate case involving "Terri's Law" and Michael's constitutional challenge to that law. That's a separate matter from the guardianship case.



Thursday, June 10, 2004

 
Schiavo News
You may recall from this earlier post that I've questioned the accuracy of a line found in recent AP stories on the Schiavo case. (They're offline now, but you can see the line's effect at the end of this story). Specifically, I thought the news service goofed in reporting that the Second District granted a motion by Michael Schiavo's attorneys to send the case to the Florida Supreme Court. I thought that instead the district court passed the case up the appellate ladder on its own motion and that Michael's attorneys simply agreed with that course.

I am happy to say I was correct. The Second District first addressed the "pass through" issue when it issued an order to show cause why the case should not be certified to the state supreme court. I have finally seen a copy of that order -- it is attached at the end of this document -- and it clearly shows that the court raised the issue, not Michael Schiavo.

If only the AP read this blog...



Wednesday, June 16, 2004

 
Schiavo News
The Florida Supreme Court has ruled that it will decide the constitutionality of "Terri's Law." In this order, issued today, a 4-3 divided court decided that it would accept the Second District's certification of the case as a matter of great public importance requiring immediate resolution by the high court.

As you probably know, Governor Bush is appealing Judge Baird's decision that the law, which authorized the Governor to reinsert Terri's feeding tube, is unconstitutional.

More on this later tonight.



Thursday, June 17, 2004

 
Schiavo News
I previously commented that I would not take any bets on whether the Florida Supreme Court would immediately hear the constitutional challenge to "Terri's Law." (Such as in this post.) The reason for my uncertainty was that the supreme court had complete discretion in whether to accept the certification: they could have decided that the case was not of such great public importance, or even if it is they could have decided that they just did not want to hear it, and sent it back to the Second District.

So it was no surprise to see a 4-3 vote in favor of keeping the case.

Practically speaking, the four-justice majority may have focused on its inevitable role in the case, as defined by Article V, section 3(b) of the Florida Constitution: if the case had been sent back to the Second District and that court had affirmed Judge Baird's ruling that Terri's Law is unconstitutional, then the state supreme court would have been required to review that decision; if the Second District had reversed Judge Baird's ruling, finding the law constitutional, then the supreme court would have had discretion to choose whether to review that decision. So the high court could have reviewed the case in either event, and certainly the more one believes the law is probably unconstitutional, the more one must acknowledge that supreme court review may be inevitable.

Is that line of thinking what produced the 4-3 vote? I doubt it. Sure, the justices were aware of the possibility that sending the case back to the Second District might be no more than a temporary reprieve from the matter, but that happens all of the time, with every constitutional challenge to a statute. Certifications such as the one here are rare, and the supreme court's acceptance of such certifications is even rarer still.

My guess is that the four justices voting to keep the case were ultimately persuaded by how much time has passed since the judicial effort to determine Terri's fate got underway, and how many judicial decisions have been required during that period. It has been six years since Michael Schiavo asked the circuit court to determine whether Terri would choose to continue receiving her feeding tube, and there have been many, many decisions at both the trial and appellate levels, with no finality yet in any direction. Another factor may have been the extraordinary nature of the events that led to Terri's Law being passed -- events at the highest levels of state government. Why not resolve the constitutional challenge at the judiciary's highest level at the earliest opportunity? Just a guess.



Monday, June 21, 2004

 
Schiavo News
For those following the nuances of the Terri Schiavo saga, some noteable events are in the works. First up, Governor Bush's hand-picked lead attorney, private sector lawyer Ken Connor, has a scheduling conflict with the Florida Supreme Court's selected oral argument date of August 31. It seems Connor is likely to be in a Mississippi trial on that date, where he will serve as lead counsel for a plaintiff in a suit against a nursing home. You can read the motion to continue the oral argument here.

A couple of people have asked whether that sort of conflict qualifies as the sort of "extreme hardship" that the court referenced in its scheduling order (available here) as necessary to continue the oral argument date. Well, that is up to the court, but rescheduling in a situation like this would seem routine.

Of a more substantive nature, the Governor's motion to stay the appeal in the Second District has been transferred to the supreme court, as explained in this order. You can read that motion here and Michael Schiavo's opposition here.

The motion to stay is based on a pending petition that the Schindlers are pursuing before Judge Greer -- a petition for a writ of quo warranto. What's that? Quo warranto proceedings are inquiry proceedings wherein a court determines an individual's right to hold public office or whether a public officer may exercise a right or privilege derived from the state. From their petition, available here, it appears that the Schindlers are challenging Michael Schiavo's right to serve as Terri's guardian. They claim that he failed to file guardianship reports on time or at all and as a result is ineligible to serve. In his written response (available at the end of this document), Michael seems to imply that he received extensions of time to file his reports, says they have now all been filed, challenges the use of quo warranto proceedings for a guardianship matter, and argues that the writ is in all events inappropriate under the circumstances of the case.

The quo warranto issue is before Judge Greer in the guardianship case, not the separate constitutional challenge case that was before Judge Baird and is now on appeal. Governor Bush's motion to stay the constitutional challenge is based on his argument that Michael Schiavo's standing to challenge the constitutionality of "Terri's Law" may be lost if the Schindlers succeed.

If the motion to stay is granted, the delay may be considerable, since whatever decision Judge Greer makes will undoubtedly be appealed to the Second District.



Thursday, July 01, 2004

 
Schiavo News: The Intervention Issue Is Over
Florida's appellate courts had a few things to say yesterday concerning the Terri Schiavo saga. First up, the Second District.

You may recall that when Michael Schiavo sued Governor Bush to prevent him from using "Terri's Law" and challenging that law as unconstitutional, the Schindlers filed a motion to intervene in the suit. Judge Baird denied that motion in a brief order. The Schindlers appealed, and, in this decision, the Second District reversed. It was suggested by some that the Second District had ruled the Schindlers could intervene, but, as I pointed out back in this Abstract Appeal post, the bottom line from the reversal was simply that the appellate court found Judge Baird's order unclear as to its reasons and, on remand, Judge Baird would have to rule again, in greater detail.

Much greater detail came in this order, which again denied the Schindlers' motion to intervene. The ruling explained that intervention of right under Florida law calls for a legal right or interest of the prospective intervenor to be directly at stake in the case, and that while the Schindlers certainly cared about their daughter's fate, such parental concerns do not give parents a basis for intervention in a suit involving an adult, emancipated child. It should be noted that, from the start, Judge Baird was willing to allow the Schindlers to participate in the case as an amicus curiae ("friend of the court"), which would allow their legal arguments to be heard by the court.

The Schindlers appealed that second order, too, but this time they were not successful. Yesterday, the Second District affirmed Judge Baird's order in a per curiam affirmed decision listed here. Florida's district courts of appeal issue per curiam affirmances, which are unwritten, citationless decisions upholding a lower court's rulings, with great frequency. I would estimate that "PCA's" (as attorneys call them) are issued in somewhere between 70 and 90 percent of appeals, depending on what kind of cases are being discussed and the time period sampled. Generally, a PCA is issued when a district court believes that the case presents no new legal issues and that publication of a written decision affirming the trial judge would not advance the law in any way.

The consequence of a PCA is generally that the case is over. While I can think of highly unusual circumstances that would be an exception to this, none applicable here, a PCA generally provides no basis for the Florida Supreme Court to review the case, and it seems infinitely unlikely that the United States Supreme Court would be interested in a case in which no state-level appellate opinion was entered, assuming an issue of federal law exists. As a result, a PCA is widely considered to be a case's death knell.

In the Terri Schiavo saga, the intervention issue is over.



 
Schiavo News: The Supreme Court Case Moves On
As if the Second District's PCA in the intervention appeal did not give me enough to talk about already this morning, the Florida Supreme Court yesterday issued a series of orders relating to the constitutional challenge. First, in a high-profile lesson to out-of-state practitioners, the court denied a group's motion for leave to appear as an amicus curiae ("friend of the court") because the motion was not signed by a member of The Florida Bar.

Next, the Court denied two motions by Governor Bush. One motion, available here, requested that the court stay the appeal until Judge Greer rules on a pending petition for writ of quo warranto in the guardianship case. (You can read more about that motion and that petition in this prior post.) The supreme court denied the motion unanimously in this order.

The other motion the court denied was a motion, available here, to reschedule the oral argument because the Governor's lead counsel, Ken Connor, has a potential conflict on the date of the argument. He will be plaintiff's lead counsel in a Mississippi case against a nursing home that is scheduled for trial on the date of the supreme court argument. The court denied the motion in a 4-3 divided order available here.

It seems that the court has decided that if this case is important enough for pass-through jurisdiction and expedited briefing, then it needs to go forward now. So the oral argument on the constitutionality of Terri's law will be held, as scheduled, on August 31, 2004.



Wednesday, July 07, 2004

 
Schiavo News: Initial Brief Filed In The Florida Supreme Court
Yesterday, Governor Bush filed his initial brief with the Florida Supreme Court in his effort to defend the constitutionality of "Terri's Law" -- an informal term for the law that permitted the Governor to order Terri Schiavo's feeding tube reinserted last year, and a term that is (intentionally, no doubt) never used in the initial brief. The brief, available here, hits the 50-page maximum and appears to be a well drafted presentation of the Governor's positions.

The brief's argument opens with an extensive discussion about how the Governor should not be bound by the results obtained in the earlier trials between Michael Schiavo and the Schindlers. The Governor's attorneys apparently consider this his most powerful point, and it certainly gives the Governor an opportunity to discuss his desire to litigate anew the issue of whether Terri would choose to keep her feeding tube under her present circumstances. A high profile claim here is that Terri's wishes should be decided by a jury.

Next, the brief directly challenges the trial court's conclusions that Terri's Law violates her constitutional right to privacy, arguing both procedural (improper burden shifting) and substantive (compelling interests exist, narrowly tailored) grounds. Finally, the brief argues that the law does not violate the separation of powers doctrine.

In the end, this brief will probably make those who support the Governor's positions very happy. The real question, though, is how it will be received by the court's seven justices, who are neither supporters nor detractors. I suggest reserving judgment on that until Michael Schiavo's answer brief and the Governor's reply are submitted over the next several weeks.

Next up should be the amicus curiae brief of Terri's parents, the Schindlers. I do not know that they intend to file such a brief, but if they do, they have five days from yesterday to do so, not including the weekend.



Thursday, July 08, 2004

 
Schiavo Thought
A reader emailed me yesterday to ask what I meant by my comment in this post that Governor Bush's initial brief never referred to "Terri's Law" as such and that this was probably intentional on his counsels' part. The perceptive reader took a guess, and she's right: calling the law "Terri's Law" could potentially be seen to support or at least draw attention to Michael Schiavo's arguments that the law is an improper special law or bill of attainder, designed for and applicable to only Terri, and that it denies Terri equal protection.

There is a counterpoint, though -- referring to the law as "Terri's Law" could also engender sympathy for Terri's parents' position and serve as a reminder of the passion and emotions involved in getting this particular law passed. After all, the Terri's Fight site frequently uses this term.

So perhaps both sides in the current dispute have reason to avoid the term.

As for me, readers paying close attention may have noted that I have started referring to the law as "Terri's Law" only in the last month or so. For the seven or eight months prior to that, and at the cost of great awkwardness at times, I referred to it as just "the law" or the "new law" or something of the sort. I did that intentionally, to avoid either implication suggested above. I finally succumbed to using the "Terri's Law" term -- which I consistently put in quotes -- when the awkwardness of not calling it that got to be too great, as events in the case have gotten more complicated to describe.



Monday, July 19, 2004

 
Schiavo Thoughts
During the last two weeks, my daily presence at an Orlando trial left me unable to post about three news items concerning the Terri Schiavo case. I will try to cover all three here.

First up, the Schindlers moved for rehearing, rehearing en banc, and a written opinion in their intervention appeal, which is still pending before the Second District. (For more on that case and the recent decision affirming the denial of the Schindlers' request to intervene in the constitutional challenge to "Terri's Law," check out this prior post.)

You can read the Schindlers' motion here. I will wait until this motion is ruled upon before I offer comments on it.

The second recent event concerns Judge Greer's dismissal of the Schindlers' petition for writ of quo warranto. You can read that order here. To summarize things a bit, Terri's parents filed a petition for what is called a writ of quo warranto. A writ is a particular type of order, and a writ of quo warranto is an order determining that an official lacks the authority to hold a particular office or to exercise a particular power through that office. The Schindlers argued that Michael Schiavo's status as Terri's guardian made him a public official whose authority could be questioned through quo warranto proceedings. The Schindlers also argued that Michael should be deprived of his office because, in their view, he has failed to comply with reporting requirements associated with his role as guardian.

Judge Greer heard argument on the petition and, skipping over some procedural matters that have no bearing, ultimately dismissed it. He did so for two reasons. First, he ruled that the Schindlers have an adequate, ordinary remedy in the guardianship proceeding itself, namely a motion to disqualify Michael Schiavo from serving as guardian, a motion that the court says has been on file since November 15, 2002. Second, as an additional ground that was not the basis for the ruling, Judge Greer determined that Michael's role as guardian does not qualify for quo warranto relief because a guardian is not the sort of official position that can be subject to quo warranto proceedings.

Distinguishing the underlying legal principles from whether they should apply to this case, both grounds articulated by Judge Greer are well-established bases for rejecting a petition for a writ of quo warranto.

Quo warranto proceedings are extraordinary proceedings, just like certiorari, mandamus, and prohibition proceedings. They are not appropriate where the petitioner has an adequate alternative remedy. Here, Judge Greer determined that the Schindlers have an adequate alternative remedy in the form of a motion to disqualify, brought within the guardianship proceeding itself. Judge Greer found it compelling that not only did such a remedy exist but the Schindlers had actually availed themselves of it, as a motion to disqualify remains pending in the guardianship case. (As an aside, I have heard of that motion but did not understand it still to be pending. I have no idea why neither side has not pursued it to a hearing.)

The alternative ground asserted by Judge Greer is a legal point particular to the writ of quo warranto. Quo warranto is meant to address official state conduct, and whether a particular office makes one a state actor for purposes of this writ is a legal question. I do not know of a Florida case that answers this question with regard to guardians, and Judge Greer did not conduct any sort of legal analysis in his order, but he did rely upon a decision by a local federal judge who concluded that court-appointed guardians are not state actors for purposes of 42 U.S.C. § 1983 claims.

The final recent noteworthy event concerns the Schindlers' amicus curiae brief filed in the Florida Supreme Court. You can read that brief here. It differs slightly from the Governor's Initial Brief by suggesting that, rather than a tool to confirm the correctness of the decision on a ward's wishes, "Terri's Law" protects a ward such as Terri by allowing an inquiry into whether recent events would change her mind about the use of life-prolonging medical measures. The brief specifically cites Terri's husband's relationship with another woman as a ground for Terri to change her mind, stating that perhaps she would do so out of "feistiness." How the court reacts to this argument, if it reacts at all, will be interesting. Whereas the Second District previously allowed the Schindlers an opportunity to prove that recent medical advances, if understood by Terri, would cause her to change her mind about terminating her feeding tube, the example given by the Schindlers before the supreme court is not rooted in Terri's medical condition or the prospects of her recovering her lost mental or physical abilities. Keep an eye on whether any other brief in this case addresses this point.



Wednesday, July 21, 2004

 
Schiavo News
The latest in this saga can be found in this story in the Tallahassee Democrat.

To sum it up, the Schindlers have filed a motion with the guardianship court, available here, asking for relief from the final judgment adjudicating Terri's wishes. The motion makes two intertwined arguments. First, the motion asserts that "Terri has now changed her mind" about not wishing to continue to receive a feeding tube, and, second, that, "Requiring Terri to suffer the withdrawal of her feeding tube is requiring her to violate her religious beliefs."

Both arguments are based on a speech Pope John Paul II gave in March of this year to the International Congress on "Life-Sustaining Treatments Vegetative State: Scientific Advances and Ethical Dilimmas." In that speech, the Pope spoke about persons in persistent vegetative states, saying that they retain full human dignity and that knowingly and willingly withdrawing food and water from them, even if delivered by artificial means, is euthansia by omission and a violation of the law of God.

You can read the full text of the Pope's speech here.

There is some debate within Catholic circles over whether the Pope's words have application to a situation where a person in Terri Schiavo's medical condition would chose not to continue receiving a feeding tube, as opposed to a situation where medical personnel or a family simply decide that someone in Terri's condition should no longer live. As you know, Terri's case involves the former circumstance, not the latter, though Terri's parents and others believe that the guardianship court incorrectly determined what Terri would wish to do.

An interesting issue here will be whether the guardianship court is going to entertain the debate over the meaning of the Pope's words, for the purpose of determining whether they would cause Terri to change her mind about discontinuing her feeding tube. Courts generally do not wish to embroil themselves in theological issues, but Terri's Catholic faith has been brought up throughout this case.


In other news, Judge Greer has apparently ruled that the Schindlers may depose Michael Schiavo and his girlfriend in connection with the pending motion to disqualify him as guardian.



Monday, July 26, 2004

 
Schiavo News
Michael Schiavo has filed his answer brief in the Florida Supreme Court. You can read it here.

The brief covers a wide range of arguments against the constitutionality of "Terri's Law." As might have been expected, given past arguments in the case, the brief focuses on arguing that the law unconstitutionally intrudes on the right of privacy and that it violates the fundamental principle of separation of powers. The brief also touches on due process, equal protection, bills of attainder, and special laws.

The brief was plainly written to the justices, who are well aware of the legal doctrines that are at issue, and not to the uninformed public that will likely be perusing the brief in an effort to gauge what's going on.

I suppose I might do Abstract Appeal readers some good if I would go through the arguments at some length, not to say which side is right but to explain a bit about what is being argued and what the agreed-upon law says. Before doing that, though, I will wait on Governor Bush's reply brief, which should be filed by the end of next week.

For those who have happened upon this site and are looking for more information on the constitutional case, you might check out my post on the Governor's initial brief (available here) and my post on the Schindlers' amicus curiae brief (available here). Also, there are links at the top left to my 2003 Schiavo posts and (most of, so far) my 2004 Schiavo posts.



Thursday, August 12, 2004

 
Schiavo Thoughts
I'm flattered that so many people have sent me emails in the past week asking for, or wondering about, my thoughts on the Schiavo case now that the briefing has finished. I'm going to post some extensive thoughts soon, sort of like a summary of the case. I may even say a little something about the merits of it all, if only to give folks who aren't lawyers some idea of which arguments seem straightforward and which seem, well, to be a bit of a stretch. Look for it either tomorrow or Saturday.


Monday, August 16, 2004

 
Schiavo Thoughts: Briefing
As many of you know, Governor Bush's Reply Brief in the Schiavo constitutional challenge is available here. In reading the brief, it may be helpful to know that the Reply Brief responds to Michael Schiavo's Answer Brief, which you can find here, and that the answer brief is in turn a response to the Governor's Initial Brief, which is available here. So we have three briefs: an initial brief, an answer brief, and a reply brief. That's standard fare in an appeal. It's also about the only thing about this case that can be called "standard."

Take, for instance, the general structure of the briefs. Ordinarily, the appellant in a case is seeking relief from a judgment by a lower court. The appellant's initial brief usually tracks the legal rulings being appealed, picking them apart and demonstrating why they were legally erroneous. The appellee's answer brief then usually tracks the initial brief, explaining why the appellant is incorrect and why the trial court reached the correct conclusion. Finally, the appellant's reply brief attempts to expose the flaws in the answer brief, thereby reexposing the failings in, and lack of support for, the order on appeal.

Little, if any, of that has occurred here. Let's go back to Judge Baird's order, the one on appeal -- it's available here. Judge Baird found "Terri's Law" to be unconstitutional on four grounds. The first two had nothing to do with Terri in particular -- they were rulings that the law is unconstitutional "on its face," which is a legal term meaning that anyone looking at the law can see that it is simply unconstitutional in all circumstances. Judge Baird first determined that the law violated the constitutional separation of powers principle by giving the Governor too much unlimited authority, and then that the law violated the constitutional privacy rights of any ward affected by the Governor's decisions. Judge Baird's next two rulings were specific to Terri -- his third ruling was that the law again violated separation of powers principles by effectively rescinding the judiciary's earlier decisions in Terri's case, and, finally, he ruled that the law violated due process by retroactively redefining Terri's rights.

Whew. The Governor has to overcome all four of those rulings in order for Judge Baird's decision to be reversed, and Judge Baird never addressed numerous other constitutional challenges to Terri's law. Those challenges will need to be determined, too, either by an appellate court or by Judge Baird, before Michael Schiavo's constitutional challenge will be defeated.

With that background, things may seem strange when you look at the structure of the briefs on appeal. The argument section of the initial brief begins with a 20-page segment meant to undermine, but not directly address, Judge Baird's conclusions on his third and fourth rulings. Judge Baird's first two rulings are addressed only in passing. In response, the answer brief does not at all track the organization of the initial brief, instead laying out an argument that supports Judge Baird's decisions but is largely dismissive of the initial brief's focus. Finally, the reply brief sets out yet another organizational scheme that focuses once again on the themes set forth in the initial brief but basically ignores the answer brief's points.

The bottom line here is that these briefs are not typical. They appear to be written not only to the court but to the media and, ultimately, one might suppose, supporters.

That's the overview. To keep the length of these posts reasonable, I'm going to break some substantive thoughts down into discrete areas and post them individually.



Tuesday, August 17, 2004

 
Schiavo Thoughts
I said yesterday that I would break my particular comments on the Schiavo briefing into discrete parts. Here goes. By the way, the purpose of doing this isn't to offer gratuitous criticism. Rather, it's to help people who do not normally read appellate briefs have a bit better understanding of what it is they are reading, including what might be meaningful to the court and what might be considered a strong or weak argument. It should also help people who watch the oral argument in the case have a better understanding of what will and will not happen.

My first specific point is rather narrow, and it's aimed at both sides. As Governor Bush explains in his Reply Brief (page 1), he filed in the trial court "numerous affidavits signed by legislators, describing their concerns and intent in proposing and in voting for the Act." Michael Schiavo, in turn, cites in his Answer Brief (page 2) to recent newspaper articles saying that "key legislators" now express "regret" over supporting the law and that their votes were pressured by physical and political threats. So how much weight will the legislators' comments carry with the court?

In all likelihood, none whatsoever. Though it is a rare topic, Florida case law consistently holds that individual legislators' after-the-fact statements about why a law passed are of little, if any, meaning. As the Fifth District explained in its 1997 decision in State v. Patterson, 694 So. 2d 55, 58 n.3 (Fla. 5th DCA 1997):

[T]he testimony of individual members of the legislature as to what they intended to accomplish is of doubtful worth in determining legislative intent and may not even be admissible.
The same point was made many decades earlier by the Florida Supreme Court when it decided Security Feed and Seed Co. v. Lee, 189 So. 869, 870 (Fla. 1939):

We do not overlook the support given appellants' contention by affidavits of members of the Senate as to what they intended to accomplish by the act brought in question. The law appears settled that such testimony is of doubtful verity if at all admissible to show what was intended by the Act.
The rationale here is that statements made after a law is passed are unreliable opinions about what happened. Statements actually made to a legislative body before a law is passed, however, are evidence of what the legislators had before them when making their decision. Before-the-fact statements are probative of legislative intent; after-the-fact statements are not.

If the post-hoc views of legislators are irrelevant, why bring them up in the case? Well, maybe the parties are thinking this will be the case where the Supreme Court accepts such materials as evidence, but that's unlikely, and, besides, legislative intent is hardly an issue at all in this case. (Intent is usually an issue where it's unclear what a law means, and there's almost no dispute here over what "Terri's Law" means.) More likely, these materials were included simply to help support each side's claim to the moral high ground -- a matter directly relevant to nothing here but which can make a party feel better about a position, and a judge feel better about a decision.



Tuesday, August 24, 2004

 
Schiavo News
Here is a short piece tucked away in the election coverage section of today's St. Pete Times. It regards Judge George Greer, the judge who has spent many years presiding over the Terri Schiavo guardianship case and who is being challenged in next week's election by newcomer Jan Govan.

The story mentions a claim from Judge Greer that Govan is attempting to hide the fact he is a man by not using his picture in advertisements or on his web site. "Jan" is not gender specific, and, as the story mentions, there is a school of thought that women generally have an edge over men in judicial elections.

I will comment that, having looked at Govan's web site, the lack of a picture is amusing. I don't recall ever seeing a candidate's web page that didn't display the candidate's picture.



Monday, August 30, 2004

 
Schiavo Thoughts
Tomorrow's argument has crept up on me. I haven't had the time to post anywhere near the number of thoughts I'd like to have posted, so I'm going to try to make up some ground with two posts today. The next post will be the first one and will cover some of the case's substance. The second will be posted later this morning and will discuss some "what you can expect" points about the oral argument itself.


 
Schiavo Thoughts: Substance of the Arguments
As you probably know, tomorrow's oral argument in the Terri Schiavo case concerns Michael Schiavo's challenge that "Terri's Law" is unconstitutional and thus unenforceable. Michael has made about seven different arguments against the law's constitutionality. The trial judge in the case, Judge Baird, addressed only four of them but agreed with Michael on all four. Governor Bush has appealed Judge Baird's decision, and the appeal is being heard by the Supreme Court of Florida, with oral arguments to be held tomorrow.

At the outset of a discussion on the case's substance, I will offer a few general observations about how courts approach constitutional cases. First, courts are very aware of the signficant precedential effect that constitutional decisions may have on future laws and future legal challenges, and so courts try to avoid ruling on constitutional issues whenever they can. Obviously that's not entirely possible here, since the Schiavo case consists of only constitutional challenges, but when courts must rule on constitutional issues they usually look to dispose of the case's arguments on the most narrow grounds possible, ones that require as little constitutional interpretation as possible or are highly case-specific, or both.

In this case, Michael need win only one argument on the law's constitutionality in order for him to win the case, and the court could write a decision discussing only that argument and concluding that the law is unconstitutional. By comparison, the court will have to reject (and perhaps write a decision on) all of Michael's constitutional arguments for the Governor to win the case. These facts suggest that, if the justices believe the law is not constitutional, they will look for the most narrow, case-specific way to reach that decision.

I will explain in the next post how these observations square with what might be expected at the oral argument, but for now I will stick with discussing the substance of the parties' arguments. The ground I see as the most likely to catch the court's attention as a way to resolve this case is Michael's delegation of power argument. It is a simple point because it does not require the court to explore any new constitutional ground: Florida law is already settled that, under the Florida Constitution's separation of powers provision, the Legislature may not give any member of the executive branch unfettered authority to make substantive decisions, generally speaking. Michael has argued that "Terri's Law" allows the Governor to order the feeding tube reinserted or removed without setting forth the circumstances under which the Governor can make either decision, giving the Governor unrestrained discretion to do whatever he chooses.

While the court may ultimately reject this argument, it is a strong one, and I expect the court to give it much consideration. The text of "Terri's Law" states what circumstances trigger the Governor's decision-making authority, but nothing in that text tells the Governor what should guide his decision, be it the ward's wishes, the ward's family's wishes, a popular majority's wishes, or anything else. This is what Michael's Answer Brief meant when it argued (at page 20) that 100 juries could determine Terri's wishes and the Governor would have no obligation to follow their decisions.

It bears mention that Judge Baird made this point his first ground for declaring Terri's Law unconstitutional, while the Governor's Initial Brief discussed this point only on pages 47-50. That discrepancy in prioritization is, in my experience, highly unusual.

The next point that I think is narrow enough to draw the court's early attention is one given short treatment by both sides: the equal protection point. "Terri's Law" gave the Governor a total of 15 days to order a person like Terri's feeding tube reinserted, so 30 days after the law took effect a person in Terri's exact situation had no remedy. I acknowledge that there are some very interesting legal issues surrounding whether a law's temporal limitation can give rise to an equal protection violation, but this ground is probably worthy of more discussion than the parties have given it, and it is one that the court may seize upon as a means of resolving the case without entering the more murky realm of privacy.

Moving on to the privacy discussion, there are three separate arguments involving the "right to privacy," all of which were accepted by Judge Baird. The first is a straightforward argument that does not concern the facts of Terri's case at all: that the law impermissibly interferes with the privacy rights of any ward whose feeding tube is ordered reinserted by the Governor. Michael argues, and Judge Baird agreed, that the law simply ignores the wishes of any ward whose feeding tube is reinserted. The issue here is whether the state has a compelling interest to interfere with the ward's privacy rights and whether the state has done so in a way that minimizes the intrusion. This is a complicated issue even to discuss, let alone decide.

I'll pause here to point out that I've thus far mentioned three significant arguments in the case that have nothing to do with Terri's individual circumstances. It would seem, then, that none of them has any connection to the Governor's argument that a new trial is necessary to determine Terri's wishes. In other words, the court could determine that "Terri's Law" is unconstitutional on any of the grounds discussed above without having to know whether Judge Greer reached the "correct" result on Terri's wishes in the original trial.

The second privacy-related argument concerns Terri's right to privacy and the principle of separation of powers. Michael argued, and Judge Baird agreed, that the law impermissibly overruled the judiciary's decision regarding whether Terri would choose to have her feeding tube removed. (Recall that Judge Greer's initial decision in the case was not what Michael or Terri's parents would choose to do but what Terri herself would choose to do in her situation.) This is closely related to the third privacy-related argument, which Judge Baird also accepted, that "Terri's Law" attempts to redefine, retroactively, Terri's privacy rights and how they are given effect. These are also complex points, one principally involving separation of powers and the other due process, and the Governor's primary response to each of them is that a new trial -- one with a jury -- is needed to determine what Terri would choose to do about her feeding tube.

A lot of people, or at least a lot of nonlawyers, are intrigued by the Governor's jury trial argument -- or so it seems from the email I have received over the last several months. Does that argument really hold up? I could write a short treatise on the point, but for today's purposes I'll condense the discussion down considerably. First, there is a very large difference between a jury making a binding decision regarding a fact, such as what Terri would do, and what the Governor seems to want, which is more like a recommendation or an advisory verdict. Second, and this is really making a long story short, the constitutional right to a jury trial in criminal cases does not apply at all in this civil context, and Florida's constitutional right to a jury trial in civil cases applies only to trials over claims for which the law in 1845 provided a right to trial by jury. That's why there's no jury trial in nearly all family law situations. Can you picture a jury deciding who should get custody of the kids in a divorce action? Now, this does not mean that the Governor could not utilize a jury for advisory purposes, and perhaps that is what his counsel will argue if this subject is raised at the oral argument. This also does not address the question of whether the Governor is bound by the results of the earlier trial, and the Governor has urged from the start that he is not bound by the earlier proceedings since he was not a party to them. That topic will almost certainly be raised at the argument, but it is too complex for me to explore in what's already become a rather long post.

Well, that is my brief look at the substance of the case for purposes of tomorrow's oral argument. As I mentioned below, I will post later today on what we might expect to see happen tomorrow.



 
More Schiavo Thoughts
Tomorrow's audience for the Schiavo oral arguments will probably include many people who have never before watched an oral argument. I'll try to offer some insight on what to expect.

First, expect no fireworks. Oral arguments are respectful events. The sort of fiery rhetoric seen on message boards and television and newspaper interviews will absolutely not be seen in the courtroom.

You can expect the justices to ask many questions of both sides. Don't be surprised if a particular justice asks hard questions of one side or both sides. Unless the justice begins a question with a comment like "I think such and such," don't attempt to read the questions as betraying a point of view in the case. Judges ask hard questions of the side they agree with just as often as they ask hard questions of the side they disagree with, and in a case with as many issues as this case has, it is very possible that the justices will agree with each side on some issues but not others.

Overall, because the justices will be looking for the simplest way to resolve this case, I expect that the justices will appear to be looking to hold the law unconstitutional. That does not mean the justices are inclined to hold the law unconstitutional -- it's just that probing the various ways to resolve the case is the most efficient use of their time during the oral argument.

If you happen to be particularly passionate about the case, don't be surprised if the attorney on your side does not voice the arguments you would use if you were standing before the court. I've seen the attorneys in this case give a pass to some very off-the-wall arguments, presumably because the attorneys like having the public on their side even if the public is really uninformed about what the law provides and what is really a good argument.

Expect the Browning decision to come up quite a bit and for the attorneys and the justices to be fluent with its issues and holdings. You can read that decision here.

Finally, don't expect the argument to end with any clear indication of how or when the court will rule. We won't know the result until it's out, and I expect the decision to take many months. A year would not be a surprise.

Wait. One last thought. Watch the arguments on C-SPAN-2 if possible. I expect the court's Internet feed to be iffy, given the likely demand from around the world. If you must watch the session over the Internet, go here at 9:00 a.m. If you log on to that page before 9 a.m., you will need to refresh the page at just about 9 in order to acquire the correct link to watch the arguments.



Tuesday, August 31, 2004

 
Schiavo Thoughts
I'd appreciate it if nonlawyers who watched this morning's oral arguments in the Schiavo case would email me their thoughts. I'd like to hear how you interpret what happened.

I came away with few new thoughts. The only justice to tip his hand, so to speak, on any issue was Justice Wells, who as I heard it stated that he believed "Terri's Law" was a special law and not a law of general application. He asked if the court would not be ignoring reality if it saw the law any other way.

Special laws are essentially laws directed at specific persons or specific geographic areas. They are constitutionally permissible, if it all, only under certain conditions and when certain steps are taken. Those steps were not taken in the case of "Terri's Law." Governor Bush has asserted that "Terri's Law" was a general law, not a special law, because it applies to anyone who met the law's criteria during the 15-day period the law was in effect. Michael Schiavo has argued that the law was plainly a special law, designed to apply for a brief period of time to the only person who met the law's very narrow criteria during that time -- Terri Schiavo.

Judge Baird never reached the issue of whether "Terri's Law" was a special law. He instead found the law unconstitutional on four other grounds. Justice Wells's thoughts on the special law issue suggest that this law's battle to be upheld is indeed uphill.

All told, the justices appeared to understand the various constitutional issues and the facts of the case rather well, and the attorneys were basically prepared to answer the questions they received. I think Michael's attorney had the most trouble during the questioning, but some may consider it significant that the hardest questions he received concerned hypothetical legislative actions that were quite different from what actually happened in this case.

I examine the high court's opinions each week, but I will not start expecting a decision in this case until, well, at least late in the year. I will note that the sooner a decision is released, the more likely it is that the court finds the law unconstitutional. I see very little chance -- almost no chance -- that a decision released in the next couple of months will uphold "Terri's Law." It is possible that the court could quickly rule against the law's constitutionality -- for instance, on grounds the law violated separation of powers principles by improperly delegating legislative authority to the executive branch -- but I think the odds favor a decision that takes many months to craft, with concurring opinions addressing matters the court's opinion does not reach and perhaps partial dissents on matters the court does address.



Wednesday, September 01, 2004

 
Schiavo News and Such
I am happily surprised at, and grateful for, the number of emails I've received regarding yesterday's oral arguments in the Schiavo case. Most included questions and I've so far responded to some but by no means all. I will eventually respond to all of them, and to some other email I'm behind on answering.

At some point soon -- hopefully later today -- I will get back to posting on some recent cases and orders that may be of interest. Appellate folks will get a kick out of a couple of the goings-on. Meanwhile, though, the work calls.

Before I go -- just one quick note on the local election involving Judge Greer, the judge in Terri's guardianship case. He won handily over Jan Govan, as reported in this story from today's St. Pete Times.



Thursday, September 23, 2004

 
SCHIAVO RESULT
The Florida Supreme Court has ruled in the Terri Schiavo case. I previously commented in this post that a decision should probably not be expected for months, but I also noted that the sooner the court ruled, the more likely it was that the court would affirm the trial court's decision that "Terri's Law" is unconstitutional. I commented that it was possible a quick ruling could find the law unconstitutional based on the separation of powers issues.

Well, the high court ruled very quickly. Far quicker than I expected. The ruling is unanimous that "Terri's Law" is unconstitutional because it violates the separation of powers principles of Florida's constitution.

You can read the decision here.



 
Schiavo Thoughts
I'll have some expansive thoughts posted later regarding today's decision. Thanks to the many readers who've emailed me and asked questions. I'll try to answer them, mostly about what happens now, tonight.


Friday, September 24, 2004

 
Schiavo Thoughts
This has taken so long to post because there is so much to say about yesterday's decision declaring "Terri's Law" unconstitutional.

First, let's round up the local media coverage. Local coverage abounds on yesterday's decision, such as the stories in these papers:

Sun-Sentinel
Tallhassee Democrat
Tampa Tribune
St. Pete Times

Also, check out the national coverage in these papers:

Herald-Tribune
Florida Times-Union

Now let's see what I can add to all that.

First, my hat is off to the Florida Supreme Court not only for its expeditious ruling but for keeping the ruling unanimous. That is no small feat nowadays. Florida courtwatchers know that our high court is continuously treading farther down the path of multiple concurrences, where justices who agree with the majority offer independent, non-binding thoughts on the issues ruled upon and not ruled upon, and justices disagreeing in whole or part with the majority set out their differences, too. The single unanimous opinion in this case is a strong, bold statement the court is of one mind that "Terri's Law" is not constitutional. The well-written decision will be relevant and precedential in Florida and elsewhere for decades and perhaps centuries to come.

So how about an appeal? The quoted comments reproduced in the stories above suggest that an appeal to the United States Supreme Court is under consideration. That's appropriate. It should be. But long consideration does not appear necessary. The U.S. Supreme Court will only review decisions involving federal law. This case was brought to challenge a state law as unconstitutional under a state constitution, and neither the legal challenge nor the final ruling in the case bears any trace of a federal issue.

That said, I can suggest what the Governor's counsel might be thinking about. Remember Governor Bush's Reply Brief? I didn't mention this when I was discussing the briefing, but the Governor's Reply Brief did include an argument on a federal issue: the Governor argued (page 6) that he was being denied his federal due process rights by not having a trial regarding Terri's wishes. That argument was most likely included to try to set up a U.S. Supreme Court challenge should the Florida Supreme Court rule against the law's constitutionality.

As for the process of appealing, Florida provides state officials with an "automatic stay" of a lower court's ruling when they appeal that ruling. There is no similar rule when a state official appeals a state court decision to the federal supreme court. So Governor Bush would need to ask the U.S. Supreme Court not only to review the Florida decision but to stay that decision pending review. The ruling on that motion, were it made, would be a rather good signal of whether the U.S. Supreme Court thought it had a role to play here.

So you know, the Governor will have 90 days from when the Florida Supreme Court's decision becomes final to file a notice of appeal. The Florida court's decision will be final either 10 days from yesterday, if no motion for rehearing is filed, or whenever a filed motion for rehearing is resolved. As I mentioned, though, filing a notice would not stay the Florida court's ruling. That could only be done by motion.

Next, a word on why this case is different from the death penalty cases that are being discussed. When a defendant is sentenced to die, the defendant will usually return to court by every possible means in an attempt to have the conviction and sentence overturned. (Timothy McVeigh was a high profile exception to this.) This process often takes decades to conclude. Importantly, these challenges are made by the defendant against the conviction and sentence. The propriety of the conviction and sentence are squarely at issue.

In this case, by comparison, the propriety of the original decision regarding Terri's wishes was never squarely at issue. The case was brought by Michael Schiavo to determine the constitutionality of "Terri's Law." Only the constitutionality of the law was at issue. No one ever instituted a separate claim or case in an attempt to revisit the decision about whether Terri would chose to continue receiving a feeding tube. That's why the Florida Supreme Court yesterday began its analysis by saying:

We begin our discussion by emphasizing that our task in this case is to review the constitutionality of chapter 2003-418, not to reexamine the guardianship court’s orders directing the removal of Theresa’s nutrition and hydration tube, or to review the Second District’s numerous decisions in the guardianship case.
Meanwhile, there are a number of things still going on that concern the guardianship court. Two concern Michael's status as Terri's guardian. They are ancillary to the decision to remove Terri's feeding tube because that decision was made by the court based on what Terri would want, not what her guardian wants. Whether Michael is Terri's guardian or someone else is would not change the result regarding Terri's wishes. I'll post about these items more in the future.

The significant item pending in the circuit court is a motion filed by Terri's parents to vacate the original decision regarding Terri's wishes. You can read the motion here. It alleges that Terri's wishes should be revisited in light of Pope John Paul II's recent statements regarding the removal of feeding tubes from people in persistent vegetative states.

This is a terribly interesting motion on multiple levels. First, there is a significant threshold question of whether such a motion states a proper claim for relief. Should recent events affect someone's decision regarding whether he or she would continue to receive life-prolonging medical treatment? And in particular, statements by religious leaders? That's one angle.

Another is whether this particular statement really means what the Schindlers say it means. The statements were made in a speech the Pope gave back in March. You can read the speech here. There is considerable debate in the Catholic Church over whether the Pope's statements were meant to cover all situations or whether they were addressed to particular situations, such as where there is a potential for recovery. There appears to be far less debate in the Church regarding whether the statements were made as authoritative, binding pronouncements. They were apparently not. (Contrary to the beliefs of some, not every word uttered by a pope in any situation is binding on Catholics.)

So what do the Pope's words mean for Catholics? How do they compare with what the American Bishops have been teaching about feeding tubes? (Compare the Pope's statements to last year's statement on Terri's case by Bishop Robert Lynch, bishop of the diocese where Terri and her family live and the highest ranking Church official with respect to Terri other than the Pope.) These questions are tough to answer, and there is a significant legal issue here about whether a court can even try to do so. The constitutional doctrines regarding the separation of church and state generally discourage, if not prohibit, courts from delving into theological disputes.

According to the Tampa Tribune article linked above, Judge Greer will hold a hearing next week on the legal sufficiency of the Schindlers' latest motion to vacate. If he rules the motion is facially sufficient to form a basis for relief, the matter will head to a trial, and thereafter the losing party will most likely appeal. If he rules the motion insufficient, the Schindlers will no doubt appeal. So, either way, this saga continues.



Thursday, September 30, 2004

 
Schiavo News: A Hearing, A Withdrawal, And A Transcript
Today is the day that Judge Greer is scheduled to hold a hearing on the legal sufficiency of Terri's parents' latest motion to vacate the court's decision regarding Terri's wishes.

You can read the motion here, and you can read a legal memorandum the Schindlers filed supporting the motion here.

Reduced to their essence, the motion and memo argue that the court's decision on whether Terri would chose to continue receiving her feeding tube (the court found she would not) should be revisited in light of a speech Pope John Paul II gave in March in which he spoke about the removal of feeding tubes from people in persistent vegetative states. According to the Schindlers, Terri would not want her feeding tube removed if she knew of this recent speech. You can read the speech here.

Today's hearing regards the legal sufficiency of the motion, meaning that the court is not going to reconsider Terri's wishes but is instead going to determine, as a threshold matter, whether the motion presents a valid legal basis to revisit those wishes.

Also, today's St. Pete Times reports here that Pat Anderson, longtime lead attorney for the Schindlers in their battle with Michael Schiavo, has withdrawn from the case.

Finally, the Schindlers were interviewed on Larry King's show earlier this week. You can read the transcript from the interview here.



 
Schiavo News: Legal Sufficiency Hearing
The AP reports here on the hearing held today. Apparently Judge Greer announced he will rule in the coming weeks on the legal sufficiency of the most recent motion to set aside the original judgment on Terri's wishes. The motion is described further in the preceding post.


Friday, October 01, 2004

 
Schiavo News
Today's St. Pete Times has this update on yesterday's hearing before Judge Greer. In short, a decision on the legal sufficiency of the Schindlers' most recent motion to vacate is expected in the coming weeks. For more on the motion, check out this prior post.


Thursday, October 07, 2004

 
Schiavo News
Everyone following this case, and many who don't, surely know by now that Governor Bush has asked the Florida Supreme Court to rehear its decision declaring "Terri's Law" unconstitutional.

You can read the court's decision here, and you can read the Governor's motion for rehearing here.

Since my work has had me consumed for the last several days, and all the world's had an opportunity to comment on this filing, I'll try to focus on what the media reports might not have said.

First of all, for those who don't regularly follow appellate courts and appellate practice, I'll let you in on a not-so-secret truth: motions for rehearing almost never work. Here's why:

A motion for rehearing asks the court to rethink its decision. The rule of procedure that permits such motions in Florida's appellate courts provides that the motion "shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding." In addition, case law makes clear that misapprehending or overlooking a point of law or fact does not mean that the movant merely disagrees with the court's conclusion on a point -- it means that the court has failed to appreciate how some controlling legal principle affects the case or failed to understand the case's facts.

Those are tough standards. The more attention a judge pays to the issues in a case, the less likely it is that anything, be it fact or law, was actually overlooked or misapprehended. Most of the time, and especially in a high profile case where the judges are surely paying great attention to the law and facts, the court does not overlook anything -- it just reaches a conclusion contrary to the views of the party seeking rehearing.

So, in a nutshell, that's why motions for rehearing rarely succeed. And none of that has anything to do with the Governor's motion in the Schiavo case. I'll look at that now.

The Governor's motion raises a series of points. Frankly, whether to do this is always a dilemma for appellate lawyers: when you've lost an appeal, you want to raise as many challenges to the decision as possible, in hopes one of them will work; at the same time, though, the more points you say the judges overlooked, the less credible your positions become. (A similar dilemma exists when deciding what to argue on appeal from a trial court's judgment.)

The Governor's first point argues that the court overlooked the basic principle that legislative acts are supposed to be presumed constitutional and should not be declared unconstitutional on their face unless the law under consideration always operates in an uncontitutional manner.

The Governor's second point argues that by reaching a decision as a matter of law and not allowing the Governor first to examine the facts in Terri's case, the court has deprived the Governor of his federal due process rights.

The Governor's third point asks the court to clarify how its decision will impact other situations where the Legislature has given the Governor powers without much specific guidance on how to use them.

The Governor's final point tells the court that its refusal to read Terri's Law in a manner that harmonizes it with Florida's existing statutes violates precedent and very much complicates the Legislature's job of adding new laws.

You may notice that, in the document's title and some of its points, the Governor asks for clarification of the court's ruling. That's an appropriate request for a party to make, and it's one that can be made by the winner or the loser. Typically, though, motions for clarification ask the court to clarify how the law applied to the case before the court or how the parties are supposed to proceed going forward. The requests for clarification in the Governor's motion are a bit different. They seem to ask the court to clarify the law to make it clear how future cases might be decided.

Will any of these arguments work? I'll let folks take their own guesses at this point. Keep in mind that, for the motion to succeed, four of the seven justices would have to decide they've overlooked something material to the case and that the result should have been different.

I will also offer a thought on what's going on. I think the odds of the Governor attempting to appeal this case to the U.S. Supreme Court appear to be fairly high. The Governor's discussion of his federal due process rights seems very much out of place if that discussion is not meant to firm up an argument for the U.S. Supreme Court that the Florida court has trampled on his federal constitutional rights. Or maybe the Governor is just doing his best to keep his options open in that regard.

I will offer a few brief thoughts on how a response to a motion for rehearing typically looks. In nearly every case, a response opposing a motion for rehearing begins and ends with a simple point: there's nothing new here, as the court's already considered all the issues raised in the motion and hasn't overlooked any of the case's important facts. Those points are sometimes elaborated upon through discussion that attempts to point out how the matters being argued on rehearing were raised in the parties' briefs, discussed at the oral argument and, finally, resolved in the court's decision.

It's often tempting for the opponent of the motion to go on at length about these points, just as it's tempting for the movant to go on at length about how the court supposedly overlooked so many things in its decision. Lawyers. Sometimes they just can't stop talking. Like this post. Okay, I'll stop...



 
Schiavo Thoughts
I recently received an email asking for a definition of what it means for evidence to be "clear and convincing." The reader was kind enough to spare me the reason for the question, but I have a good guess: on message boards around the Internet, posters are continuing to debate whether Judge Greer's original decision regarding Terri's wishes was the correct one, and some folks are looking for a better feel of what it means for evidence to be "clear and convincing."

I'm glad to oblige.

First, though, a thought on the ongoing debate. I've seen some people take a hard position that testimony from witnesses regarding what Terri (or anyone else in Terri's position) once said is not evidence of her wishes. People taking this position seem to believe that the only acceptable evidence regarding the person's wishes should come directly from the hand or mouth of the incompetent person herself.

That's simply not correct. Evidence in the form of testimony regarding an incompetent person's oral statements is admissible to prove whether the person would choose to continue receiving life-prolonging treatment.

That's not to say such testimony must necessarily be believed: it's up to the trier of fact to determine the credibility of the testifying witness and how much weight that witness's testimony should receive.

Now, back to the question. In the 1994 case In re Davey, the Florida Supreme Court approved the following definition of the clear and convincing evidence standard:

There must be more than a "preponderance of the evidence," but the proof need not be "beyond and to the exclusion of a reasonable doubt." This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Let the debates continue.



Sunday, October 10, 2004

 
Schiavo Mail
Back at work again today, and I just responded to another email regarding the burden of proof in the original trial on Terri Schiavo's wishes. Based on the readers comments, it seems reproducing part of the question and my answer may do some good.

Here's the pertinent part of the question:

One side says that because Michael brought the petition the Schindlers had to disprove Terri's wishes. It is my understanding from reading several other cases on end of life procedures that the petitioner for removal must provide the 'clear and convincing' evidence that the ward would not want want to be kept alive by extraordinary measures. In other words it's the opposite of criminal trial where the plantiff actually has to defend the statements he's making. Does Florida law work the opposite or am I just misunderstanding what the law says? If you could explain this better I think it would help greatly.
And my response:

It's somewhat awkward to speak of burdens in this context because it's not as if someone came into court as a plaintiff and had the burden of proving something to obtain relief from a judge or jury. It's difficult to conceptualize any result in this sort of case as "relief."

The trial judge's role was to determine what Terri would want to do in this situation. Under controlling Florida case law, there is a presumption that she would continue to receive life-prolonging measures, and that presumption can only be overcome by clear and convincing evidence to the contrary.

So, before Judge Greer could decide that Terri would not wish to continue receiving her feeding tube, he had to determine that clear and convincing evidence supported that result.

I think of it as a two-step process. First, decide if, based on all the evidence (and only the evidence) presented in court, would Terri choose to continue receiving the feeding tube or would she choose not to do so. If the answer is that she would not, then decide if the evidence supporting that result meets the standard of "clear and convincing" evidence. If it does, then the ultimate decision is to discontinue life-prolonging measures. If it does not, or if the answer to the first question was that she would continue to receive life-prolonging measures, then life-prolonging measures should be continued.

I find this view more accurate, and certainly less awkward, then talking about whether someone carried a "burden" of proving someone else's wishes.



Monday, October 11, 2004

 
Schiavo Thoughts
A number of folks have written me about columns that bemoan the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.

The first such column I recall was this piece in National Review, written by a lawyer who's fighting for Terri's parents. Most recently, as in today, the Sarasota Herald-Tribune published this piece by columnist Rod Thompson.

Both pieces call the supreme court's decision wrong. They each cite examples of other situations involving the governor's power to act that are supposedly inconsistent with declaring Terri's Law unconstitutional. Apparently these sorts of examples are sparking great debate in the modern version of public squares -- Internet message boards -- and I'm finally giving in to the pressure to say something. So let's take a look.

Coincidentally, both the Herald-Tribune column and the National Review column start with the idea of the governor's pardon power. The argument is that governors regularly overturn final judicial decisions finding people guilty of crimes by granting pardons, so how can it be unconstitutional for Terri's Law to overturn the decision in Terri's case? A real good answer to this question would take quite a while to read and even longer to write. I'll give the single best distinction: unlike Terri's Law, the governor's pardon power (more accurately referred to as executive clemency) is part of Florida's constitution and the very framework of our government. Article IV, section 8 of the Florida Constitution provides in part:

(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.
(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.
Remember, the separation of powers provision states that no member of any branch can exercise the powers of any other branch "unless expressly provided herein." The governor's and the legislature's clemency powers are "expressly provided" therein, so by the provision's very terms those powers do not violate the separation of powers concept.

Another coincidence, the second example given in both the National Review column and the Herald-Tribune column concerns a court's child custody decision and a state agency's ability to step in to change custody in cases of abuse. This argument is based on poor information. First, while Florida's statutory child protection scheme is complex, in the end the state agencies do not make "custody" decisions; rather, they apply to courts for authority to remove children from abusive situations on an emergency or temporary basis, they apply to courts to have children declared dependent on the state for care, and they apply to courts to have parents' parental rights terminated. All of those decisions are made regardless of whether a judge previously awarded a parent "custody," and in none of these situations is a state agency overturning a court decision.

Also, Florida law is clear that once a custody decision is final, even courts cannot revisit the decision unless the party requesting a change proves a "substantial change in circumstances." In other words, the courts never truly revisit an old custody decision. Instead, they decide if circumstances have changed in a material way, and if they have, then the courts go forward and make a new decision. "Terri's Law" did not require a substantial change in circumstances to trigger the Governor's authority to act.

A third example given in the Herald-Tribune piece concerns the Governor's exercise of emergency powers during the recent hurricanes. This example relates to a subcomponent of the separation of powers doctrine: the legislature cannot effectively delegate its lawmaking authority to the executive branch by giving the executive a power to act with no constraints on the exercise of that power. The argument seems to be that a governor sure has broad powers to act in emergency situations, so why can't the legislature give a governor broad powers to act in cases like Terri's?

This answer can be complex, too, but the short of it should lie in the particularity of the respective laws. The governor's emergency powers stem largely from the State Emergency Management Act and, in particular, this section of that act. A careful review of the act shows not only that the Governor's specific powers are laid out, but that they are limited in numerous ways, including legislative oversight and a 60-day time limit. Were a governor to declare a state of emergency for no reason, or attempt to continue one without a basis, there would be oversight. By comparison, with Terri's Law, the language of the law allows the governor to order a feeding tube reinserted without requiring that there be any basis for the order, and the law allows the governor to rescind that order at any time with no requirement that there be a basis to do so. That's rather different from the governor's emergency powers.

It bears mention that there are other aspects to the Florida Supreme Court's decision that are not addressed by the examples offered by the above-mentioned columnists. For instance, none of the examples addresses the notion that "Terri's Law" was written to authorize gubernatorial intervention only for 15 days, and so only in Terri's case, or the related notion that "Terri's Law" was written not to change the law of Florida going forward but simply to change how the law applied in one particular, and already final, case. Both of those notions impacted the court's separation of powers analysis.

Having said all that, there's nothing wrong with a columnist having an opinion. Better information, however, usually makes for a more accurate opinion.



 
Schiavo News
Michael Schiavo has filed his opposition to the Governor's motion for rehearing.

You can read the motion here, and you can read the newly filed opposition here. No surprises. The opposition simply argues that the court has already considered, and rejected, the arguments raised in the motion for rehearing. That's standard fare for an opposition.



Thursday, October 21, 2004

 
Schiavo News
As you can read in this order, the Florida Supreme Court has denied Governor Bush's motion for rehearing in the Schiavo case. The court's decision declaring "Terri's Law" unconstitutional is thus final.

I've already been asked about whether an appeal to the United States Supreme Court would stay the case and prevent Terri's feeding tube from being removed until that appeal is resolved. The answer is that it could, if the U.S. Supreme Court were to grant a stay. Unlike the situation under Florida law, a decision by the Governor to appeal would bring no automatic stay. Governor Bush could file a motion requesting a stay, and the court could grant it. I'll post more on this topic later -- for now, the ongoing proceedings before Judge Greer pretty much ensure that Terri's feeding tube will not be removed in the immediate future.



Friday, October 22, 2004

 
Schiavo News
You may recall that, some months ago, the Schindlers filed a second motion for relief from Judge Greer's original judgment regarding Terri's wishes. The new motion, which you can read here, alleged that Pope John Paul II's statements last March regarding feeding tubes would cause Terri to change her mind regarding whether she would decide to continue receiving her feeding tube. (You can read the Pope's statements here.)

Today, Judge Greer ruled that this latest motion fails to present a sufficient basis for relief from the prior judgment. You can read Judge Greer's order here. The order does not disagree with the Pope's statements, or make any interpretation of them. Instead, the court ruled that, based on the court's earlier findings regarding Terri's religious convictions, nothing stated in the motion shows that Terri would change her mind.

Judge Greer also entered a second order staying his ruling on the motion for relief until December 6, 2004. You can read that order here.

Simply put, this means that the Schindlers have lost their most recent effort to overturn Judge Greer's original decision regarding Terri's wishes, and they will now have an opportunity to appeal Judge Greer's latest order to the Second District Court of Appeal.



Saturday, October 23, 2004

 
Schiavo News, Thoughts
Today's Tampa Tribune has this update on the Schiavo saga. It describes several items that seem noteworthy.

First, the story states that the Governor has filed a motion asking the Florida Supreme Court to stay its decision while the Governor pursues an appeal in the United States Supreme Court. This is bizarre for a couple of reasons.

It would be a rare thing indeed for the state supreme court to stay its decision while a litigant seeks U.S. Supreme Court review. Most litigants just ask the U.S. Supreme Court to enter a stay.

What seems dispositive here, though, is that the Florida Supreme Court has already issued its mandate in the case. A mandate is an appellate court's final directive to a lower court, and its entry signals the end to the appellate court's jurisdiction in the case. While it may be possible that the Governor's motion was filed prior to the mandate's entry, it would seem that the court is without jurisdiction even to consider granting a stay request unless the court first recalls its mandate. That would seem highly unlikely, especially if no motion asking for that relief is before the court.

The second noteworthy item from the Tribune's story concerns the comments of Michael Schiavo's attorney. According to the story, the Governor filed his stay motion after Michael's counsel stated Michael would attempt to remove the feeding tube as early as Friday. (I assume that means next Friday.) Such a statement seems nonsensical. Judge Greer ruled yesterday that the Schindlers' latest motion fails to state a claim for relief. The Schindlers have a right to appeal that decision, a right that would be completely nullified if Terri's feeding tube were to be removed before that appeal could be completed. Florida's appellate courts have proven their sensitivity to this point. It's simply not going to happen that Terri's feeding tube is removed before that appeal is completed. Period.

The last noteworthy item from the story concerns the Governor's counsel's statement that the appeal to the U.S. Supreme Court will ask that court "to restore the balance of power between Florida's judicial branch and the legislative and executive branches." It would seem unlikely that any appeal to the nation's high court is actually going to concern the balance of power among the branches of a state's government, and even less likely that the U.S. Supreme Court would hear such a case. The U.S. Supreme Court resolves federal issues, not state issues, and then only extremely significant federal issues.


 
Schiavo Thought
I see from some wire reports that Governor Bush may have filed a motion in the Florida Supreme Court asking it to stay its decision while an appeal is filed with the United States Supreme Court. I'm about to run out the door (literally) for my weekly distance run, so I'll have to post about this at length later today. For now, I'll comment that if those reports are true, the motion seems certain to be denied. As I'll explain later, Florida's high court has already issued its mandate. The case there is over unless the court is asked to, and does, recall that mandate.


Sunday, October 24, 2004

 
Fifth District: Hearsay (Schiavo Connection)
Over the past year, I've exchanged innumerable emails with persons who are convinced the trial court in the Terri Schiavo case should never have relied on hearsay from Terri's husband and his family regarding prior statements Terri made. (These folks doubt she actually made them.) I've tried to explain to them why hearsay in that situation was admissible and that hearsay is often admissible.

In that vein, here is a decision from the Fifth District in which the court affirmed a criminal conviction based solely on hearsay. The case includes an interesting Confrontation Clause discussion. Now, the reasons the hearsay was admissible in this case have nothing to do with the hearsay utilized in the Schiavo case, but I point it out simply as an example of how a myriad of reasons allow hearsay to be admitted in a particular case.



Monday, October 25, 2004

 
Schiavo News
In two prior posts from Saturday, I noted newspaper reports stating that the Governor had requested the Florida Supreme Court to stay its latest decision, and I offered the view that any such motion could not be granted unless the court first recalled its mandate in the case, which had already been issued.

Well, the folks at Terri's Fight have posted the Governor's filings from Friday and it turns out the Governor has asked the high court not only to stay its decision but to recall its mandate. That's procedurally necessary for the court to consider granting the stay the Governor seeks, and it takes care of the concern I raised over the weekend.

You can read the motion to recall the court's mandate here.


 
Schiavo News
The Schiavo saga apparently knows no bounds. In the Florida Supreme Court, we saw this order entered today, giving Michael Schiavo until noon tomorrow to respond to the Governor's motion to recall the court's mandate and enter a stay. That's a rather quick deadline.

Mid-day deadlines usually make me expect late-day rulings.

On another front, Michael has filed this motion with Judge Greer. In it, Michael argues that the court lacked subject matter jurisdiction on Friday when it entered an order staying the other order the court entered Friday. The stayed order denied the Schindlers' latest motion for relief from the original judgment.

I could get into the legal merits of the subject matter jurisdiction argument, but I'm going to skip that discussion because the merits seem not to matter. The motion concedes that, in all events, the trial court would have jurisdiction to enter a stay once the Schindlers have noticed their appeal of the order. That appeal will no doubt be filed as soon as might be necessary to ensure a stay remains in place. Of course, the motion could certainly be wrong about the trial court's supposed lack of jurisdiction, too.... Either way, the feeding tube is not going anywhere for the time being. No doubt, Florida's courts will resolve the Schindlers' latest motion for relief from judgment on its merits, and right now that means after the Second District has heard the Schindlers' inevitable appeal.

FYI, under ordinary circumstances, the Schindlers could file their notice of appeal as many as 30 days from the date the trial court denied their motion, and they would then have 15 days from when they filed their notice to serve their initial brief in the Second District. Expect things here to happen a bit quicker than all that.



Friday, October 29, 2004

 
Schiavo News: Stay Restated
Restated by me, that is.

I'm going to try discussing the Florida Supreme Court's recent stay order, and I've removed my prior comments, which were confusing and not accurate.

Here goes: On Wednesday, Florida's high court granted Governor Bush's motion to stay the court's decision declaring "Terri's Law" unconstitutional. The order, available here, stays all proceedings in the constitutional case but does not affect the ongoing guardianship proceedings.

The court's stay order effectively leaves in place the Governor's order (issued pursuant to "Terri's Law") that Terri's feeding tube remain in place.

The court's stay will remain in effect through November 29, 2004, to allow the Governor time to seek a longer stay and review from the U.S. Supreme Court. The order indicates that the mandate will be reissued on November 30 if no further stay is granted by the U.S. Supreme Court. It is not clear whether the Florida Supreme Court's stay will remain in place if the U.S. Supreme Court also grants a stay.



Monday, November 01, 2004

 
Schiavo News
On Thursday, Judge Greer held a hearing in the guardianship case.

Prior to the hearing, the Schindlers filed their notice of appeal from the ruling dismissing their most recent motion to vacate the original judgment, and based on the now-pending appeal, the Schindlers asked Judge Greer to extend the stay of that dismissal order until the appeal is concluded. Judge Greer had previously entered a stay that would expire on December 6.

Thursday's hearing resulted in this order, which stays the dismissal order until the Schindlers complete their appeal in the Second District.

That's more than appropriate and another example of how Florida's courts have attempted to allow the parties in the Schiavo saga a meaningful opportunity to pursue any legally permissible appellate relief.

I know there are a number of people out there who believe this judge or that judge is predisposed to rule for a certain side, but I continue to say that I've seen none of that. The courts are making their rulings based on their sincere views of how Florida law applies to the events at issue, and to the extent the unsuccessful party has a right of appeal, the courts have readily stayed their rulings to ensure that right is not eviscerated by events that would moot the case.

We saw that last week in the Florida Supreme Court's order (available here) staying the constitutional case after Michael Schiavo's attorneys insisted that Terri's feeding tube should be immediately removed. We see the same principle being effectuated by this most recent order from Judge Greer.

So my hat's off to the courts for continuing to do the right thing.

One last thought along these lines. Some may wonder if granting a stay indicates that the court has some doubt about the correctness of the decision being appealed. In a word -- No. I've seen judges (in other cases) refuse to grant stays out of what appeared to be an unfortunate certitude that their rulings were correct, and without regard to the harm that might occur if that turned out not to be the case. But when a judge grants a stay, it is almost always done for one reason: to ensure that nothing irreparable or irreversible happens while an appeal goes forward. In the case of Terri Schiavo, removing her feeding tube and allowing her to die would certainly constitute irreparable and irreversible harm, if an order effectively allowing the tube's removal were to be reversed on appeal.



Thursday, November 04, 2004

 
Schiavo News
A few notable events occurred recently in the Terri Schiavo saga. First, on Tuesday, the St. Pete Times published this story, which indicated that Michael Schiavo may be unwilling to continue fighting the Schindlers. The story suggests that, were he to do that, the courts could wind up ruling in the Schindlers' favor by default.

That's possible, but I think it's a bit more complicated than that in this case. I'll reserve my thoughts until we see if any absence from the litigation actually occurs.

In other, related news, Michael has asked the Second District to vacate the stay set in place last week by Judge Greer. (See this prior post for more details on the stay.) The motion argues that the trial court's stay order reflects a policy of staying any decision until appellate relief can be sought and that, given the Schindlers' history of repeated efforts to undo the original judgment in this case, the cycle of stays will never end. The motion hints at the weariness described in the article linked above, saying, "there does not appear to be any benefit in participating in such a process."

You can read the motion to vacate the stay here.


Wednesday, November 24, 2004

 
Not Exactly Schiavo
I have been blogging about the Terri Schiavo case since I started this web log in mid-2003. I've tried to help communicate what has really happened in that case, legally speaking, and part of my motivation has been my frustration with the still-too-common myth that Terri's husband, Michael, simply decided that he wants Terri's feeding tube removed.

That's not so. Florida law is clear that each individual has a constitutional right to decide whether to continue receiving life-prolonging measures, and if a particular person is unable to make that decision, what decision that person would make must be determined by someone else. In the Schiavo case, someone else had to decide what decision Terri would make, and disagreement among Terri's family led to that decision being made by a judge based on the evidence presented in a trial. The judge did not determine what he thought Terri should do -- he determined what he thought Terri herself would do.

Today's news brings this related story from the Orlando Sentinel. Apparently, doctors for a man in an Orlando hospital agree he is terminally ill, cannot make decisions for himself, and is unlikely to recover. He is on a ventilator, a dialysis machine, and medications.

Many years ago, the man signed a living will expressing his desire not to have the dying process artificially prolonged and that he wanted treatment in such a case only to alleviate pain.

Now, the man's wife refuses to agree to withhold medical treatment, and the hospital and the wife found themselves in court over the matter. The wife contends her husband is alert and responsive.

Yesterday, Judge Kirkwood of the Ninth Circuit in Orlando rejected the wife's arguments and ruled that the living will applies and must be honored here by the hospital.

The story is sad, as all such stories are. But it does help point back to some lessons from the Schiavo case. The ultimate decision is the ward's, and where there is disagreement over what the ward would do under the circumstances, a court will step in and determine what those circumstances really are and what the ward would choose to do. Living wills are marvelous and critically important declarations of intent, and they certainly help matters, but they do not eliminate the possibility of disagreements and even litigation.



Wednesday, December 01, 2004

 
Schiavo News: Mandate Re-Issued & Second District Brief Filed
Recall that, in late September, the Florida Supreme Court released this decision declaring "Terri's Law" unconstitutional under Florida's Constitution. After Florida's high court denied Governor Bush's motion for rehearing, the court issued its mandate, which officially ended the proceeding in that court. Immediately thereafter, though, Governor Bush filed this motion, which asked the court to recall its mandate and stay its re-issuance while the Governor pursues an appeal in the United States Supreme Court. The Florida Supreme Court granted that motion, recalled its mandate, and ordered that re-issuance of the mandate would be stayed until November 30, 2004, unless the United States Supreme Court issued a further stay in the case.

Well, November 30 has now come and gone, and the U.S. Supreme Court has not issued any further stay in the case. So, yesterday, the clerk of the Florida Supreme Court re-issued the mandate in the case. "Terri's Law" is now formally and finally declared unconstitutional as far as Florida's judiciary is concerned. You can read the new mandate here.

What's a bit strange here is that -- by all appearances -- the Governor's counsel has not yet requested a stay or filed a petition asking the U.S. high court to review the Florida Supreme Court's decision. The Governor's October 22 motion indicated that a petition would be filed within 15 days.

What happened? I don't know. My only guess is that the exigencies that prompted the Governor's prior expressions of urgency have subsided. Remember, at the time the motion was filed, Michael Schiavo's attorneys were talking about having Terri's feeding tube removed immediately. Since that time, in the separate guardianship case, Judge Greer has denied the Schindlers' latest motion for relief from the original decision to remove the tube (a motion based on this speech given by Pope John Paul II earlier this year) but has stayed that decision, and the tube's withdrawal, until the Schindlers can complete their appeal of the decision in the Second District. You can read Judge Greer's order denying the latest motion for relief here, and you can read Judge Greer's latest stay order here.

So where does that leave things? The matter is over in the Florida Supreme Court, though the Governor still has plenty of time in which to file a petition seeking review with the U.S. Supreme Court. The stay he previously sought has, in effect, been granted by the guardianship court proceedings. In fact, the guardianship court's stay may be more beneficial to the Governor than the stay he requested from the Florida Supreme Court. Any outright denial of a petition for review would probably occur in the next couple of months, and if the U.S. Supreme Court were to take the case, a decision on the merits could quite possibly be reached before the high court's term ends in June. The appeal in the guardianship case, on the other hand, could easily take much longer. So in a comparison of worst case scenarios for the Governor's position, the status quo is rather good.

Peeking around at the news, I see that the AP reports here that the Governor still intends to appeal the Florida Supreme Court's decision.

Finally, I also see that Terri's parents have filed their initial brief in their appeal to the Second District. You can read it here. I'll have more on this later.



Thursday, December 02, 2004

 
Schiavo Mail
A reader asked me to clarify how long Governor Bush has to ask the United States Supreme Court to review the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.

By my calculation, the answer is January 19, 2005. The deadline is a 90-day period, and the time runs from the date the Florida court denied rehearing in the case, which was October 21, 2004.


 
Schiavo News: U.S. Supreme Court Appeal Filed
The Sun-Sentinel reports here that, yesterday, Governor Bush filed a petition for a writ of certiorari from the United States Supreme Court in the Terri Schiavo saga. This is the Governor's appeal of the Florida Supreme Court's decision (this one) that "Terri's Law" is unconstitutional.

I have not been able to locate a copy of the petition. When I do, I'll give some details on the argument. For now, I'll just give some general background.

The U.S. Supreme Court is authorized to hear appeals from the decisions of state courts when they involve matters of federal law, and even when they involve such issues, the high court has the discretion to take only the cases that it feels are of the greatest importance. A petition for a writ of certiorari is a request for the high court to hear a case. If the request is granted, then the parties will brief the case on its merits. Right now, the only issue being addressed is whether the court should take the case.

The primary obstacle at this point for the Governor is that the Florida Supreme Court's written decision rested entirely on Florida law and the Florida Constitution. It appears, though, that the Governor is relying on an argument that he directly, and Terri indirectly, are being denied the federal right to due process because the courts are simply accepting as true the conclusions reached in the prior litigation between Michael Schiavo and the Schindlers. Of course, the most important conclusion from that litigation is that Terri would decide not to continue receiving life-prolonging measures in the form of her feeding tube under her current circumstances. The Governor argues that he was not a party to that prior litigation and that he should be able to litigate Terri's wishes anew.

Does that argument raise a federal issue that will interest the U.S. Supreme Court? I agree with those mentioned in the Sentinel's story that the odds of the high court taking the case seem very poor, though I'd like to see the petition before saying for sure. If someone out there gets an electronic version, I would greatly appreciate if you would forward a copy to me.



Friday, December 03, 2004

 
Schiavo Mail: U.S. Supreme Court Practice
A reader spotted this line in an Orlando Sentinel story about Governor Bush's recently filed certiorari petition: "Attorneys for Michael Schiavo will have 30 days to respond to the Supreme Court filing, then Bush will get 15 days to answer that before the high court rules on whether to accept the case, attorneys said." The reader asked if this means that there will possibly be two full rounds of briefing in the U.S. Supreme Court.

The answer is: possibly, but we may also have no more briefs filed at all. What might be added to the line from the Sentinel is that, in the U.S. Supreme Court, the respondent (the party opposing the petitioner) does not have to file a response to a petition for writ of certiorari. The respondent can instead file a notice stating that the response is waived. While this might sound risky, it really is not. The high court will initially evaluate the case based on the petition alone. If the case at all intrigues the court, it will not simply grant the writ and hear the case. Instead, the court will request a response and, after one is filed, then decide whether to hear the case. So initially waiving a response presents little downside, and, while I won't explain this in detail, it offers the upside of getting the court to act on the petition faster.

The bottom line here is that I will not be surprised if Michael Schiavo waives a response. That is commonly done in the U.S. Supreme Court. There is no comparable practice in Florida's appellate courts, though that does not mean it never happens. More on this later...



Wednesday, December 08, 2004

 
Schiavo Thoughts: The USSC Case
Last week, Governor Bush filed a petition for writ of certiorari with the United States Supreme Court, asking that court to reverse the Florida Supreme Court's decision that "Terri's Law" is unconstitutional.

You can read the petition here, thanks to the folks at Terri's Fight.

I'm going to take a look at what the petition says.

First, some background. The point of a petition for certiorari is not to demonstrate error in the decision being appealed. A sense of injustice in the result below is important, but the real point is to convince the court that the case is important enough, on a national basis, to justify making it one of the eighty or so that the nation's highest court will decide in any given year. The court generally prefers to rule on issues only after they have percolated a bit in numerous other cases, which lets the high court have the benefit of multiple judges' thinking on the subject. Sometimes, though, a case is so important that the court will accept it even if it is the only case to address a particular issue.

The Governor's petition is divided into two principal arguments. Both chart out whole new territory in the law, so this definitely is not a percolating-type situation. The Governor is banking on this case being singularly important in its national implications.

A significant hurdle to being accepted for review will be the need to show the court that the case involves not only important issues but important issues of federal law. After all, the U.S. Supreme Court has neither the authority nor the desire to decide whether state courts have correctly interpreted their own states' laws. The U.S. Supreme Court addresses only federal law issues, and important ones at that.

Another significant hurdle for the petition here will be to show that the issues the Governor intends to raise on the merits will leave no "independent and adequate state ground" to support the decision being appealed. Let me put that another way. The U.S. Supreme Court will not hear an appeal on one issue -- even a really important federal issue -- if a reversal on that issue will not change the result in the case because a separate, state-law based ground exists to reach the same result. In such a case, the high court's ruling would have no effect, and the court does not decide cases where its ruling would have no effect.

The first of the Governor's two points concerns the Florida court's separation of powers analysis. Recall that the Florida Supreme Court held that "Terri's Law" was unconstitutional partly because, in effect, the law simply overrode the judiciary's final conclusions regarding how Terri would exercise her right of privacy under these circumstances. The petition does not run from that characterization. Rather, the petition seems to embrace it.

In fact, if I read the petition correctly, it argues that Florida's case law permitting a judge to determine whether an incompetent person would choose to continue receiving life-prolonging medical treatment creates a conflict of interest for the judge that justifies legislative intervention, so much so that the Florida judiciary's decision to block that intervention by declaring the law unconstitutional was itself an unconstitutional act, depriving Terri of her federal rights to due process and equal protection.

Ultimately, the first point asks the high court to establish the ground rules for when, in the context of life-prolonging medical care for incompetent wards, a state's legislative and executive branches can step in and correct a life-threatening error in the state's judicial process.

The Governor's second point concerns the Florida Supreme Court's reliance on the prior litigation between Terri's parents and her husband. This point argues that not allowing the Governor to retry the factual issues in those cases deprives the Governor and Terri of due process under federal law, since the Governor was not a party to those earlier proceedings and the persons who were parties had conflicts of interest. The petition asserts that due process requires that a neutral guardian ad litem be appointed and that the many factual issues raised in the case be aired before, and decided by, a jury.

Well, those are the points. Will they convince the court of the case's national importance? Do they leave untouched any independent and adequate state law ground? I suppose we will know in the next month or two. Michael Schiavo has until January 3, 2005, to oppose the petition, though, as I mentioned last week in this post, he has the option to waive filing a response.



Thursday, December 09, 2004

 
Schiavo Thoughts: Latest 2DCA Appeal
I'm finally able to post some thoughts on the latest Schiavo-related appeal, or at least the latest one in the Florida court system.

Recall that this latest round of litigation began with this motion for relief from the original judgment in this case. The original judgment determined that Terri would choose not to continue life-prolonging treatment in the form of her feeding tube, and in this new motion, the Schindlers alleged that a new event had occurred that would make Terri change her mind. The new event was this speech that Pope John Paul II gave in March, where he discussed the immorality of denying food and water (in the form of feeding tubes) to persons in persistent vegetative states.

Judge Greer denied the motion -- technically, he dismissed it -- for failing to demonstrate a colorable entitlement to relief from the original judgment. The court ruled that the Pope's latest statements were consistent with arguments the Schindlers made earlier in the case about the Catholic Church's teachings, and that, as before, there is still no religious adviser who can speak to Terri's personal religious beliefs and desires.

Judge Greer stayed the effect of his ruling until the Schindlers can complete an appeal to the Second District. That will permit Terri's feeding tube to remain in place while the appeal proceeds.

The Schindlers have now appealed, and they have filed their initial brief with the appellate court. The brief is available here.

In the brief, the Schindlers argue that they presented the trial court with a sufficient basis for relief to require fact discovery and a trial on the motion's merits. They argue that the Pope's statements represented a new Church position and one that Terri would certainly follow. They also argue that the original evidence on Terri's religious beliefs was undeveloped and that the evidence presented in the motion would confirm Terri's beliefs and desire to follow the Pope's direction.

The Schindlers also present a few constitutional arguments. They argue the trial court determined that the Pope's statements were not new and different pronouncements and in doing so delved into church law in violation of the constitutional requirement that courts avoid determining the correctness of church teachings. The Schindlers also argue that refusing to permit Terri to follow the Pope's latest statements deprives her of her constitutional right to the free exercise of her religion and violates Florida's religious freedom statutes.

Now, here's where things get really interesting. Michael Schiavo has filed a notice with the Second District indicating that he will not be filing an answer brief. That is extraordinary, given all that has happened thus far in the case. Perhaps Michael is, litigiously speaking, exhausted by what seems to be an endless stream of legal challenges by the Schindlers. Perhaps he cannot afford counsel and no one is willing to aid him without charge.

In any case, not filing a brief on the merits of an appellant's arguments is very rare. When I've seen it happen, the case usually involves an insolvent debtor, or a state agency that does not wish to defend an outrageous ruling below, or sometimes a party in a divorce action who is being forced to pay both sides' attorney's fees and who does not wish to pay for a brief in what may well be a losing appeal. This case fits none of those scenarios.

So what will come of this? Well, the only rule involved -- and I don't think it's actually a rule, more of a practice -- is that Michael and his counsel will not be permitted to participate in any oral argument. I note that the Schindlers have requested an oral argument, and the court will likely grant it as a matter of course.

It should go without saying that the court will not appreciate the absence of an answer brief, but that does not mean the court will simply rule in the Schindlers' favor. As in all cases, the court will examine the Schindlers' arguments thoroughly and will agree with them only if the court believes the law commands the result the Schindlers seek. Still, the system works best when skilled advocates present both sides' best positions and the court can weigh the merits of each view. That will not happen here.

So now we await the oral argument.



Friday, December 24, 2004

 
Schiavo Thoughts
UPI ran a story this week about the Terri Schiavo saga. The story is available here and here. The author assumes the U.S. Supreme Court will hear Governor Bush's challenge to the decision overruling "Terri's Law," and, if I read the story correctly, he predicts the result will be a 5-4 decision reaffirming the principles from Cruzan v. Director MHD without deciding Governor Bush's "14th Amendment argument." The author labels the justices as conservative or liberal and, deeming Cruzan to have reached a conservative result, believes the court's conservative majority will again carry the day in the Schiavo case.

Though some readers have asked me to comment on this story, and I have leisurely pondered it and Cruzan now for a couple of hours, I have decided to say little about the story itself. I am not sure I understand the author's conclusions about how the court would rule if it took the case, and I don't believe broad labels like "conservative" or "liberal" are very useful for predicting how a judge will decide a case involving the sort of issues found in Terri's case.

The Cruzan case is available here, and I commend it to anyone interested in this area.

Cruzan involved a Missouri woman in a persistent vegetative state who was being kept alive with a feeding tube. Years earlier, she had made comments to others about not being kept alive in such circumstances, and her family wanted the feeding tube removed. The hospital where she stayed, however, wanted the tube left in place. So did the State of Missouri. A trial judge examined the case and, to oversimplify, ruled in the parents' favor. The state supreme court reversed, holding that the state's interest in preserving Cruzan's life could only be overcome by clear and convincing evidence she would not wish to continue her medical care. Cruzan's guardian and her parents then asked the U.S. Supreme Court to reverse that decision. The high court took the case, but it affirmed the result below.

The argument made to the U.S. Supreme Court was that Cruzan's federal due process rights included a liberty interest in refusing unwanted medical treatment, including the use of a feeding tube, and that Missouri could not deprive her of that right. The court framed the issue to be decided in the case as whether Missouri's clear and convincing evidence requirement violated the Fourteenth Amendment's due process clause. A majority of justices said no.

So what does Cruzan tell us? It tells us that the federal constitution does not prohibit states from using the clear and convincing standard when evaluating incompetent patients' wishes. That's it, and that has nothing to do with anything that has ever been at issue in Terri's case.

Two concurring opinions from the "conservative" Cruzan majority deserve some attention. Justice O'Connor observed that a feeding tube cannot be distinguished from other forms of medical intervention. She wrote:

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.
(citations omitted.)

Justice Scalia added that, in his view, the federal constitution simply has nothing to do with any of this. He explained that no one has a substantive federal right under the due process clause to deliberately end his or her own existence, regardless of the circumstances.

These are certainly conservative views in some senses, but do they align with what many seem to believe a "conservative" court would do with Terri's case? Does the label "conservative" help here at all? I don't think so.



Monday, December 27, 2004

 
Schiavo Thoughts
I thought I should finally mention that show. Some of you know which one. It aired last Saturday on A&E and was called "Between Life and Death: The Terri Schiavo Story." The show included three clips with comments from me. Yeah, that was me. The producers called me last November and asked if they could interview me. I agreed to speak but only on the legal events that had already taken place. I didn't want to comment on "Terri's Law," which at the time had just been passed.

I didn't know if anything would ever come of the interview. I was surprised to get an email from the producer last Saturday afternoon -- well over a year later -- saying the program would air on A&E that day. Unfortunately, when I got the email, I was shopping in Orlando, a long way from my home in St. Pete.

I finally got to see a tape of most of the program this weekend. A very kind reader has also emailed me, saying he recorded the entire program and would send me a copy. Very kind, indeed. A great Christmas gift. Anyway, I thought the show did a decent job of explaining the circumstances of the case. Both "sides" had parts of their stories told, and both "sides" probably felt minor but critical elements of their stories were left out, which probably means the program was pretty well balanced.



Wednesday, December 29, 2004

 
Schiavo News
Today's Miami Herald has a year-end update here.

 
Schiavo News: Latest Appeal Lost
Well, the latest step in the Terri Schiavo saga has now been taken. Today, the Second District rejected the latest appeal by the Schindlers, affirming Judge Greer's decision that the Schindlers' most recent effort to set aside the original decision on Terri's wishes is insufficient. (For more on the Schindlers' appeal, see this prior post.)

The Second District issued its decision without a written opinion. That's a "per curiam affirmance" or "PCA" in appellate parlance.

Today's PCA is significant, and between breaths here at work I'm going to try to sum things up. There are some interesting appellate angles here that I will set aside for now to focus on the practical consequences of today's decision.

To begin, this decision does not entirely end the case. The Second District still has not issued its mandate, and that will not happen until one of two things occurs: (1) the Schindlers do nothing during the 15-day period in which motions for rehearing and rehearing en banc can be filed, or (2) the Schindlers timely file one or both forms of rehearing motion, or request a written opinion, and the court rules on whatever they file.

When the Second District issues its mandate, the case will be returned to Judge Greer. Assuming there is no change from the current decision affirming the result below, the operative order going forward will be the Second District's directive in this June 2003 decision, which instructed Judge Greer to hold a hearing to set a date for the feeding tube's removal.

As for the pending U.S. Supreme Court appeal, recall that the U.S. Supreme Court has not yet decided whether to hear Governor Bush's appeal from the Florida Supreme Court's decision declaring "Terri's Law" invalid. (For more here, see this post and this one.) Recall also that the Florida Supreme Court had stayed its decision regarding "Terri's Law" until November 29, 2004, to give the Governor time to seek a further stay from the U.S. Supreme Court. I am not aware that the Governor ever sought such a stay, and the Florida Supreme Court's stay has now expired. So, the Governor's current effort to appeal to the U.S. Supreme Court has no effect on what at the moment looks like the coming removal of Terri's feeding tube, unless the Governor requests and is granted a stay by that court.

One close follower of this saga has already asked me whether the Schindlers can appeal this latest decision to the Florida Supreme Court. In short, no. Assuming a motion for rehearing or written opinion is not filed or, if one is filed, it is denied without comment, the Schindlers can theoretically ask the Florida Supreme Court to review the Second District's decision, but the Florida Supreme Court will not have the ability to grant that request. The PCA issued today is, in the context of this case, unreviewable by the Florida Supreme Court. It is possible that the Second District could issue a written opinion based on a motion by the Schindlers for rehearing, and such an opinion might -- might -- open the door to review by the state supreme court, but the odds of a written opinion being issued that provides a means for supreme court review are very, very poor.

You might wonder whether today's decision can be reviewed by the U.S. Supreme Court. The answer is yes, if that court wishes to hear the case. The Schindlers have argued that the refusal to revisit the original decision deprives Terri of her religious freedoms under the First Amendment, an argument that raises an issue of federal law within the U.S. Supreme Court's jurisdiction. Of course, the Schindlers cannot ask the U.S. Supreme Court to hear the case until the matter is over in the Florida courts, and absent some form of stay from the nation's top court, the feeding tube would be removed long before the court resolved the case. So U.S. Supreme Court relief remains a long way off.
Bottom line? The Second District's mandate should issue 16 days from now unless a rehearing motion or motion for written opinion is filed. I suggest watching for the Schindlers to file one of those motions, which will take at least weeks to resolve. I also suggest watching to see if, before the Second District can issue its mandate, the Governor's office prepares a motion asking the U.S. Supreme Court to stay the "Terri's Law" case while that court decides whether to hear the Governor's appeal.

As for me, I'm going to update the 2004 Schiavo Posts page tonight. I haven't done that since late October, and I suspect a number of folks may be visiting here soon who may be interested in an up-to-date, though horribly long, chronology.


 
Schiavo News: A Little Help
Governor Bush's effort to obtain review in the U.S. Supreme Court got a boost today in the form of an amicus curiae brief from the American Center for Law and Justice. You can read the ACLJ's amicus brief here.



 
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