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March 23, 2005



Looks like you ended up digging into this more than you originally thought?



The statutory languate is a little bit unclear, but as I read the statute and the commentary on it, the statute only authorized relief for a violation of FEDERAL law ("laws of the United States") or Federal Constitutional Law. That is why the Schindlers only raised federal law violations in their complaint.

The use of the words "de novo" led some to claim that the substantive issues of Terry's wishes and medical condition could be tried anew. That was not the case.

If the statute had authorized the retrial of state court issues, it would have been unconstitutional.


when you say "some," you are including people like DeLay and Frist, right? They have made clear that that's what they intended, it seems to me. And certainly the concept that it might not be constitutional didn't really seem to faze them when they were writing the bill, so saying it couldn't have referred to state retrial issues on those grounds seems suspect to me.

In any case, even if the Act was designed to inspire review of the parents' federal case, the only logical avenue in which to review it, would be to examine the results of the state trials--something Congress claimed they didn't want to have happen.



By it's own terms the statute grants jurisdiction only to hear federal claims:

"for the alleged violation of any right of Theresa Marie Schiavo under the **Constitution or laws of the United States** relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."

There is no mention of rights under Florida state law. The statute goes on to say:

"In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination "

The words "within the scope of this act" refers to previously defined federal claims. Any due process claim would necessarily have to take into account the state court proceedings, so as many have observed the "notwithstanding" language is somewhat unclear. Nevertheless there is no affirmative grant of power to hear any state law claims.

The language of the statute is here:

I assume Frist and DeLay were advised by lawyers about the constitutionality of the statute. Whether they paid attention to that I can't say. There are many other constitutional problems with the statute, besides the question of overturning a state law adjudication. Frisk appeared to need some democratic cooperation and thus might have had to consider their constitutional objections.

Whatever their beliefs about the merits of the court challenge, their main hope had to be that Terry could be kept alive during the anticipated trial and long appeal process.


I don't disagree with your interpretation of the Act's text, necessarily. In fact, that's rather my point to begin with: whatever Congress wanted, they did a terrible job of getting that across (or as you note, they were unable to get that language approved, so they did the best with what they had).

But clearly IMO, the architects of the law intended a) for the judge to immediately grant a stay; and b) some kind of review over her PVS state and expressed wishes would be undertaken by the federal courts. That neither of these intents made it into the actual bill, is why I say Congress fucked up. :)



There were various versions of the Senate and House bills. What came out of the conference committee, was closer to the Senate version. Language in the Senate version stating the court "shall" order the feeding tubes reconnected, was changed to "may", and then was dropped altogether. What the House version said I don't know.

If you read the district court opinion (which is at the link above), you will see that the judge pointed out this change in language, and to statements by Senator's Frist and Levin, in which Frist conceded it was up to the district court's discretion, using existing law, to decide on whether to grant a TRO maintaining the status quo while the case was being decided. Frist did state that he assumed the district court judge would in fact order the feeding tube reconnected. He assumed incorrectly.



The Schindlers have filed an amended federal complaint alleging, in part, that Terry's due process rights were violated in that her desire to keep on living is being violated. At least one knowledgeable lawyer commentator thinks this is a clever way to get a review of the underlying factual issues (what her wishes were and her current state of health) under a federal law claim.

You can read it here, the best site for news and commentary on this case:


I'd already read Whittemore's decision, which prompted in part my commentary here. And I just got done reading AA's discussion of the amended claim, and was coming over to point it your way. :)

I agree with his description--what they wanted was a de novo trial, but all they felt safe to ask for was a de novo review.



You misunderstand his comments. It's not a question about what "they" (congress) felt "safe" to do. It's a question of what they meant by their incomplete language. If they wanted to specify a de novo trial they could have done so, and it wouldn't have been any more unconstitutional than if they had specified de novo "review". The question is what did they mean. That appears to be a wide open question.

It's interesting that after reading Whitmore's decision you still thought that the he could have decided the underlying facts anew under state law. That's why it's hard for layman, even educated and well read layman, to interpret the law. Even non specialist lawyers have a hard time. -) And that's why it's hazardous to rely on the MSM to interpret legal issues correctly. But of course most folks don't have the interest or tisometimes me to read the legal commentators.


Chew, when you say "they" you might mean Congress as a whole. I mean the architects of the bill. And when I say what they felt "safe" to do, I mean what they thought they could pass. They wanted a de novo trial, clearly, based on their comments during and after. They wanted the courts to evaluate whether she was PVS, and whether she said she wanted to die. They wanted new tests done--neurological and swallowing. You said that yourself. They wanted, in effect, a new trial. But they didn't find themselves able to create a bill calling for one.

I'm confused by your last statement. I never said Whittemore could have decided them based on the law. I said I didn't know whether he WOULD have, had they presented new claims, or claims for review based on previous facts. But once they brought claims that required review of the state trials in order to ajudicate, he freely relied on those trials in order to reach the conclusion that they didn't have merit to gain the injunction.



I understood you to believe, as did most folks, possibly including Frist and Delay, that the statute granted the federal district court the power to decide anew whether Terry should or should not have her feeding tube removed. That issue however is purely a question of state law, absent some creative application of federal law which I haven't yet heard. But the statute by its own terms only granted the court the power to entertain federal law claims, not state law claims. So the Schindler's presented a number of constitutional due process and federal statutory claims.

If that was not your belief then I was mistaken.

The stuff about de novo "trial" versus "review" was a separate and unsettled procedural issue discussed by the link I cited too. That question is separate and distinct from whether the court has any power to inquire into the state law issues which determine whether the feeding tube may be removed.

That issue is also distinct from whether and on what basis the court should grant temporary relief keeping Terry alive during the pendency of the underlying de novo determination.

I agree with you that the statute failed to achieve what some proponents such as Frist and Delay say they may have intended. Either because of incompetent drafting, compromise, or the risk of unconstitutionality. I can't say.



If the judge had granted a preliminary injunction, as many expected, it likely would have been upheld on appeal, and Terry might have been kept on her feeding tubes for years and years of federal litigation and appeals. It was no slam dunk that the TRO would be denied.



Funny Quotes from Bilmon's Blog:

"Ignorance of the Law is No Excuse

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo. That means he has to hold a new trial. That's what the statute said."

Sen. Rick Santorum
Interview with WABC Radio
March 22, 2005

"The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States . . . In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act . . ."

Public Law No. 109-3
March 21, 2005

"In obedience to Pub. L. No. 109-3 the district court considered the federal constitutional claims de novo and made its own independent evaluation of them."

11th Circuit Court of Appeals
Ruling No. 05-11556
March 23, 2005"

Read the quotes from Frist and Delay also:



no, I never believed it was possible for Whittemore to review the case whole cloth, although I admit that I underestimated/missed the breadth of the gap between that and what the Act actually allowed.

My point was that the authors seem (and you make clear from Billmon) to have INTENDED or desired for Whittemore to make a review of facts in the case, AND that he should ignore the previous rulings in doing so. Those two would seem to have gone hand in hand for DeLay and Frist--they wanted to have him review the case, without ruling on how Greer ajudicated. What I addressed in the original posting was that IMO the Schindler lawyers simply opened the door back wide open to review Greer, because they filed on the basis of due process--which can't be ajudicated without reviewing the prior process itself.

I admit I am operating from the perspective that no matter what argument they came up with, it would have likely been shot down, so if they were going to lose they might as well have lost trying to get their "new evidence" heard. But I probably was unfair to the Schindler lawyers in the piece; they filed federal claims that were proper in terms of jurisdiction, regardless of what Congress thought they should/would be filing. That's not "dumb" on their part, but it did create an obvious conflict between their actions and the Act that authorized them--you can't claim she didn't get a fair state trial, without examining the state trial, and Congress told him not to do that.

On another note, I haven't heard many details of this last emergency new claim, but it sounds absurd. If this lawyer heard her say she wanted to live, where's he been all this time? Why file guaranteed loser claims if you have the ace of spades in your pocket?

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