The decision broke about 45 minutes ago; you can read both the majority and single dissenting opinion, as well as all of Judge Whittemore's original denial from yesterday, hat tip Free Republic.
I surely don't get the sense that this case was ultimately going to go the parents' way to begin with, but the two rulings highlight a pair of major problems, one brought about by Congress and one by the plaintiffs themselves.
The first problem is that the courts were not mandated to issue a stay of the original order by Judge Greer to remove the feeding tube. In fact in some discussions of the bill a mandatory stay was discussed, and eventually even the "may" language that would simply authorize a stay, was dropped. The appeals majority finds this to be a crucial point, because it claims otherwise to grant deference to the Congressional Act, with the court not ruling on or considering its (fuckin' obvious) non-Constitutionality. But because the issue of a stay was not addressed in the language of the bill, discrection was assumed. And thus, when Judge Whittemore exercised his discretion and said "No" based on a failure to likely win on merit, the appeals court could not find that discretion in abuse. And that's important as well, because in reviewing the District Court decision, their only option was to rule on abuse of discretion; NOT the merits of the injunction. (Nevertheless, the majority explicitly agrees with the lower court that their case has no merit at all).
What Congress thought it did do right, was to force the courts to review the case de novo, or with a fresh slate. They intended to direct the courts to ignore the fact finding and appeals in the state system, and readdress the case anew (which, the GOP leadership expected, would mean that they'd start feeding Terri again in order to readdress it). Then, based on the claims made by the parents, the court could review them and pretend that the state case had never happened.
It's been a whirlwind legal battle the last few months, so I'm sure these guys are tired, but what the parents' legal team did in assembling their case before Whittemore, was to claim denial of Terri's due process rights, as she had her case heard...by the, uh...state courts. With the door to the state rulings firmly shut (so DeLay thought), the parents ripped it wide open again and invited the judge to have a look. It would be impossible to judge a denial of due process claim without reviewing the process where it was supposedly denied. This led to a double whammy negative ruling for her family, IMO: not only was the 11th's panel now being directed by a complaining party to review the state court decisions, the review of that process appeared to also obliterate their claim.
I certainly see the temptation there: it's a federal court, you want federal issues on your brief. Their lawyers know as well as anyone that the District judge doesn't want to reconvene a trial on the facts from scratch--that's always been a state matter. But it's clearly what Congress thought was going to happen: Terri would be reconnected, and a full-blown trial about PVS and Terri's statements while undamaged would occur. Whether Whittemore would have accepted a pure request for finding of fact in a family law dispute, I don't know. But he eagerly accepted the opportunity to examine their federal claims by noting the appropriateness of state jurisprudence, and find the claims wanting.
The likelihood of SCOTUS taking this on seems slim, although never say never. If in fact a hearing is denied, the clean sweep through the federal court system would be a sharp rebuke to the current group of people running the country right now. Americans' opinions on the case, now firmly in the camp of Mr. Schiavo, may have run more to the middle during a full trial, or even a contested judicial review. But if the family can't even get the tube put back in to go over the case again, there will be a strong political cost.
More to come, quite possibly before I can even get this posted...
--TJ
Looks like you ended up digging into this more than you originally thought?
Posted by: swatter | March 23, 2005 at 13:50
TJ,
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.
Posted by: chew2 | March 24, 2005 at 11:27
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.
Posted by: Torridjoe | March 24, 2005 at 11:56
TJ,
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:
http://balkin.blogspot.com/
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.
Posted by: chew2 | March 24, 2005 at 12:59
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. :)
Posted by: Torridjoe | March 24, 2005 at 13:58
TJ,
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.
Posted by: chew2 | March 24, 2005 at 16:03
TJ,
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:
http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111170687561063030
Posted by: chew2 | March 24, 2005 at 16:26
chew2--
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.
Posted by: Torridjoe | March 24, 2005 at 16:36
TJ,
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.
Posted by: chew2 | March 24, 2005 at 18:14
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.
Posted by: Torrid | March 25, 2005 at 10:10
TJ,
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.
Posted by: chew2 | March 25, 2005 at 12:42
ps.
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.
Posted by: chew2 | March 25, 2005 at 12:48
TJ,
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:
http://billmon.org/archives/001767.html
Posted by: chew2 | March 25, 2005 at 15:03
chew--
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?
Posted by: Torrid | March 25, 2005 at 17:46