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.
Oy, you know it's not my job to educate illiterate "conservatives" but for you, what the hell. Individuals have rights, states have powers. If you want to wear the mantle of conservatism it would do you well to learn the difference.
So you don't care how your children wish to live?
The ones who do not succeed when they try it, or the ones who assist. Kervorkian is in jail.
I care that they live.
But you don't care how they live? You think that's fair? I'll assume they feel the same way as you. If they don't, well, I don't even know what to say.
I've been thinking the same thing. Hannity's been making better arguments on his show.
It doesn't matter how. Some are rich and some are poor. Some are fat and some are lean. Some have sickness, others are healthy, some have a mountain of aggravation and misery, others are fat in luxury. All must hold to what they are given in trust -- life.
Well, I'm glad I'm living in a State where my wishes will be respected.
G-d forbid it should happen to you -- but when it does your views might then change. And like some Edgar Allan Poe story come to life you will be trapped in a window-less cell of your own making, unable to signal that your wishes have changed.
Thank you for stating so clearly a very obvious fact that too many of us forget from time to time. The Constitution makes clear, i.e. Amendment X "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Sorry, I don't have time for that.
I will admit I do not know all there is to know about the Constitution and maybe Article 3 is not the correct one to quote, but I heard that particular section mentioned many times.
If knowing law is important to you, then why do you not accept the word of most of the Congressmen who said that this was Constitutional? A whole lot of them have been lawyers.
"Oy, you know it's not my job to educate illiterate "conservatives" but for you, what the hell. Individuals have rights, states have powers."
I guess you can educate Ronald Reagan and Robert Bork about conservatism while you are at it, you liberal. Guess you better study our language better next time you attempt to infiltrate Free Republic.
"If knowing law is important to you, then why do you not accept the word of most of the Congressmen who said that this was Constitutional? A whole lot of them have been lawyers."
The architects of the New Deal claimed their legislation was constitutional. That didn't make it so. I am curious however under what enumerated power the Congress passed this. It doesn't sound like a commerce issue or a spending issue.
I think the law itself was perfectly constitutional -- the courts have held numerous times over decades that the 14th ammendment allows for the feds to insure that such does indeed exist.
The law passed by congress only affected claims under due process of law, consitutional questions, and other federal laws. If congress decides to do this, they are well within their rights -- see various laws which allow state prisoners to file cases in federal court.
The issue is that congress can't get involved in the "presumption in favor of life". That is governed by state law, and their is no consitutional basis for them to be involved. The federal courts can make sure that due process is followed, but that's about it. If we want to see a "presumption in favor of life" in our court system -- the state legislature has to do this. See the Alabama and Michigan legislatures which are currently taking up bills to forbid the with-holding of treatment in cases of unwritten gaurdianship.
Finally, the procedural errors that might have been committed by Greer can be examined under the due process clause and the subsequent enacting legislation. The only procedural error that the Shindler's brought up in their federal court filing was that Greer failed to appoint a gaurdian ad litem. The federal judge found this to be unpusuasive because:
1) 3 different gaurdian ad litems have been appointed and all agreed with Micheal.
2) The Shindler's attorney was representing Terry's "interest in life".
3) Micheal's attorney had a statuatory obligation to represent Mrs. Shiavo -- not Micheal. There was no allegation (and the court can't make one up without it being in the filings) that Micheal's attorney was not properly performing his statuatory duty.
I just cannot take you seriously.
And you did not answer my question.
Perhaps now he loves his life, and regrets his desicion having had to face his death more closely than most people in ordinary course of life.
Yet if so -- if his death-wish vanished when death was just nigh upon him -- G-d forbid he should have once signed a "living will" and then if left uncommunicating yet vital and desiruous of continung in broken form, if he had instead been dashed and broken spine upon some rock. For some guardian and judge would finish him, even though he would so have wished to live.
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