Posted on 03/22/2005 6:58:07 AM PST by yatros from flatwater
Schiavo Thoughts: Judge Whittemore's Order Explained
Author: Matt Conigliaro
I previously posted Judge Whittemore's order, and it's here.
In short, the order concludes that the Schindlers have identified no violation of Terri's constitutional rights. For those looking for more information, here's my extended summary:
Judge Whittemore observed that the Schindlers are seeking a temporary injunction -- one mandating the reinsertion of the feeding tube. There are several requirements that must be met to obtain a temporary injunction. The court found the requirements applicable here to be met except the most important one: a showing of a substantial case on the merits of the Schindlers' claims. In other words, this comes down to whether the Schindlers' arguments have any merit.
Judge Whittemore individually examined the five claims asserted in the complaint the Schindlers filed yesterday. You can read that complaint here.
Count I of the complaint alleges that Terri was denied due process when Judge Greer made the decision, following a trial, on what Terri would want. Judge Whittemore found no due process violation. He ruled:
Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.
Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....
[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.
Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.
Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.
These rulings appear to be decisions on the merits of the Schindlers' complaint, not just preliminary views that the Schindlers may not be able to prove their claims.
Once again, Judge Greer's decisions -- and the procedures required by Florida's statutes and Florida's judiciary -- have been upheld. Once again.
Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.
the Schindlers' lawyers stink
PLEASE, PLEASE Call or FAX the above Florida State Senators and urge them to pass the law Now in the FLORIDA Legislature that would save Terri's life!!!
Looks like the judge found that the Florida courts are competent to handle the matter and that the Federal Judiciary has no reason or need to butt in. That's called State's rights. Overall this is a good precedent against further Federal intrusion into State judicial processes.
However you may feel about the merits of the Schiavo case, the fact remains that the principle of State's rights is far more important than any individual case. Besides, if you don't like the Florida decision, then don't live in Florida. It's called Federalism, you know ...
No, I took a peek at the ruling and it does say that. However since the questions of due process were raised because of Greer's ruling, Judge W. had to consider their merits. I urge everyone to read the ruling. I could not read it all cause my computer was waaaaaay slow with PDF. I have a strong feeling that this ruling will be overturned on appeal. Of special interest, I thought was the Judge cited Reno vs. Elian Gonzales as one of the cases dealing with temporary injunctions. Ironic isn't it. The courts have become so clever in denying life and liberty to the most innocent while granting it to the most heinious of crminals.
Not exactly.
Congress required a de novo (new) review of federal and consitutional questions -- which are essentially the questions of whether or not Terri had due process.
Congress didn't requrie (because it can't) a new trial on the facts of the underlying case, and the appointment of a guardian. That is a state matter, and it any such law that tried to intrude is unconsititutional.
If a violation of due process is/was found, a new trial could be ordered -- which would be held by judge Greer in state court.
Her name is Carla Sauer Iyer.
There is a thread regarding her and her affidavit around here somewhere.
I started one, but am not familiar with FR enough to find it and link to it easily.
BB62
Presuming Greer,that is -- it could be any judge in that district, no?
Affidavits that show the woman is alive, responsive and can eat and drink.
http://www.hospicepatients.org/heidi-law-09-03-affidavit-re-terri-schiavo-michael.html
http://www.terrisfight.org/documents/CIyerAffidavit090203.htm
"Any order to murder and innocent is a illegal order. There is no duty to obey it -- there is a DUTY to dis-obey it."
Crimes against humanity is what the Nuremburg trials called it. The NAZIs started killing with the mentally handicapped, and the "courts" upheld it. Someday, there will be a recogning. If not in this life, then in the next.
States' Rights and the rest of the Constitution had their death warrants signed by Marshall and colleagues on the Supreme Court in 1803, and the idea died at Appomattox Court House in 1865. Since then, all the pretty words have been useful tools for judges to turn their rulings upon, and nothing more.
You asked about who's directing the Hospice...check this out:
http://writewingblog.blogspot.com/2005/03/something-fishys-going-on-in-pinellas.html
http://hyscience.typepad.com/hyscience/2005/02/the_hapless_mis.html
"If I'm not mistaken the law that Congress passes explicitly states that previous state court finding of fact should be disregarded"
That is what I thought it said when I read the law also. Once again, a judge is thumbing his nose at the Executive and Legislative branches. This is not balance, this is abuse.
Then contact the legislature to ensure this doesn't happen again. Your beef isn't with the judicial, but with the legislature.
Nope, it would be Greer.
One of the primary thoughts in jurisprudence is you don't get to go judge shopping. Whoever gets assigned the case to start with (Greer in this case), keeps it until the bitter end.
The only way that a judge other than Greer would hear a new case is if the case is dismissed. The federal district court doesn't have the power to dismiss a state lawsuit -- they can set it aside, or require a retrial, but in either of those cases Greer gets it on retrial. The only federal court that could dismiss would be a higher Flordia court, or the US Supreme court IF they took a case that came up through the Flordia courts (not one coming up through the Federal Judiciary).
The law in no place states that a de novo review of all facts are requried, or even allowed. It does say that the state court rules on the question of due process should not be examined by the district court, but the law itself does not provide jurisdiction to the federal district court to hear anything other than a due process/consitutional question.
My Beef? Is with anyone who stands by and allows this. It is a murder, and certainly the Judges who go along with any due process that allows an innocent to be murdered would be welcomed by Eichmann and Haman both.
Since the Florida senators' numbers are busy, keep trying to call, but in the meantime, let's flood them with emails also. It's easy to do it here:
http://capwiz.com/sicminc/issues/alert/?alertid=7260671&type=CU
Then take her out of that local court's jurisdication. Move her to another state.
I think the biggest mistake was not pursuing having Michael removed as her guardian. They should have litigated that all the way up. The fact that he is living with another woman and has two children with her, and the fact that he stands to benefit financially upon her death is plenty reason to remove him as guardian, IMO.
Will you run around the country stopping the removal of thousands of feeding tubes each year?
1. How does Florida get its State Rights? THROUGH THE PEOPLE.
2. How are the people represented? THROUGH THE LEGISLATURE.
3. The Florida Legislature used their States Rights. How? THROUGH TERRI's BILL.
The blankity! blankity! state court told the people up yours. We don't listen to you.
The United States Congress has the authority to appoint a new court to hear this through the
United States Constitution
Article 3
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