Free Republic
Browse · Search
Bloggers & Personal
Topics · Post Article

Skip to comments.

Schiavo Thoughts: Judge Whittemore's Order Explained
Abstract Appeal (Blog) ^ | March 22, 2005 | Matt Conigliaro

Posted on 03/22/2005 6:58:07 AM PST by yatros from flatwater

click here to read article


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-8081-97 next last
To: bvw
That's a stolen power -- they have it only by stealing it.

No, they have it because of their status as the legal guardian. There's dark conspiracy here, just the way the laws are currently written. It is assumed that the legal guardian would know the wishes of the incapacitated person, and the law gives them the power to carry out those wishes.

Have the law changed if you don't like it -- that's your power.

61 posted on 03/22/2005 10:56:01 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 60 | View Replies]

To: yatros from flatwater
In assessing a request for injunctive relief, the only inquiry the court can consider is whether her due process rights were violated. The court is limited to an inquiry of whether the state court ignored procecural guarantees in its adjudication of this case.

While everyone on this thread would probably have come up with a different decision, the question is only whether the court ignored proper procedure in reaching that decision. The issue of an ad litem was a non-starter, the Schindler's attorney's ably represented Terri's interests. The religious issue was similarly weak. That's why it was included last.

From all appearances, this court decided this case right down the line and according to the rules. This will probably be upheld on appeal. The only way that Terri can probably be spared is through some type of executive or legislative action. Hate to be the bearer of bad news, but I never thought the judicial route would ever get a good result.

62 posted on 03/22/2005 11:01:41 AM PST by Don'tMessWithTexas
[ Post Reply | Private Reply | To 1 | View Replies]

To: sgent

You are incorrect, this has now become a federal case and any new hearing of facts will be in a federal court, then remand back to a Florida court. Judge Greer had, at least, a huge conflict of interest when he appointed himself guardian at one point for purposes of hearing the charge in HIS COURT. I expect that the Third Circuit, if that is noted for them by Schindlers' lawyer, will take this on that basis now that the Congress has cleared up the habeas corpus.


63 posted on 03/22/2005 11:02:14 AM PST by MHGinTN (If you can read this, you've had life support from someone. Promote life support for others.)
[ Post Reply | Private Reply | To 25 | View Replies]

To: antiRepublicrat

Guardians, such as parents, are granted expansive powers over incapacitated persons and minors. For example, it is assumed that parents would know the wishes of their children and would act in their best interest. I agree. If the people of the states want to overturn the rights of guardians in situations like this, they need to lobby their legislatures and change the laws.


64 posted on 03/22/2005 11:04:57 AM PST by Don'tMessWithTexas
[ Post Reply | Private Reply | To 61 | View Replies]

To: yatros from flatwater
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.

Not "supposedly" anything, it is contrary to Catholic dogma.

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,

Judge Greer IGNORED testimony that Terri was a practicing Catholic. That would seem to be a burden.

and that Michael Schiavo and the hospice cannot be sued here because they are not government actors.

MS can be sued and I'm quite sure he will be but it will be because he witheld the money earmarked for her care and rehab.

The law in this area addresses religious burdens imposed by governments.

Once more for the impaired. When the state ignores evidence regarding ones religious beliefs in deciding informed consent, the state has burdened that indivduals religious beliefs. To claim otherwise is to claim that up is down.

65 posted on 03/22/2005 11:12:56 AM PST by jwalsh07
[ Post Reply | Private Reply | To 1 | View Replies]

To: New Orleans Slim
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 ...

States don't have rights genius.

66 posted on 03/22/2005 11:17:27 AM PST by jwalsh07
[ Post Reply | Private Reply | To 23 | View Replies]

To: JoeFromCA
The selection of federal judges is more a function of recommendations from a state's U.S. senators than input from the president; hence the appointment of a Republican judge by a Democrat president.

Of course it is, so you can ell the dems to stop fillibustering judges any time now.

67 posted on 03/22/2005 11:20:16 AM PST by jwalsh07
[ Post Reply | Private Reply | To 51 | View Replies]

To: jwalsh07
The First Amendment protects us against government attempts to restrict the free exercise of religion. The court basically said that Greer made a decision about what Terri would have wanted. That adjudication does not constitute a government action. Meanwhile, Schiavo and the hospice cannot be guilty of a violation of religious liberties because only governments can violate those liberties.

Sorry to say, this argument was probably the weakest offered. Under the test the court was compelled to follow, her attorneys had to show that the district Court violated her constitutional rights in the way it came to its decision. They failed to do so. Don't blame the judge. Blame the Schindler's attorneys.

68 posted on 03/22/2005 11:35:02 AM PST by Don'tMessWithTexas
[ Post Reply | Private Reply | To 65 | View Replies]

To: Don'tMessWithTexas
Yeah, I know what the court said and I know what Greere ruled. The testimony of TS's Catholicism was deemed incredible by Judge Greer and and the mystical recall of her wishes by MS some 8 years after the fact was deemed credible.

It seems that Greer's a priori beliefs are an insurmountable obstacle to overcome.

69 posted on 03/22/2005 11:40:35 AM PST by jwalsh07
[ Post Reply | Private Reply | To 68 | View Replies]

To: antiRepublicrat


70 posted on 03/22/2005 11:48:01 AM PST by bvw
[ Post Reply | Private Reply | To 61 | View Replies]

To: jwalsh07

"States don't have rights genius."

Take a hike, you liberal. States' Rights is a pillar of modern conservatism.


71 posted on 03/22/2005 5:56:08 PM PST by New Orleans Slim
[ Post Reply | Private Reply | To 66 | View Replies]

To: Spunky

"1. How does Florida get its State Rights? THROUGH THE PEOPLE.

2. How are the people represented? THROUGH THE LEGISLATURE."

Yeah. See, there's these things called courts which interpret the law in Florida. The legislature writes bills of varying detail and the courts then apply those laws in actual factual circumstances.

"3. The Florida Legislature used their States Rights. How? THROUGH TERRI's BILL."

And the courts determined that the legislature did not have the power to make this sort of law. Big deal. The legislature cannot make a law that strips me of my property without just compensation. What you are advocating is tyranny of the legislature. If you want that, move to the UK where Parliament has authority to do whatever the hell it likes. We kicked the Brits out to avoid what you are advocating.

"The United States Congress has the authority to appoint a new court to hear this through the
United States Constitution
Article 3"

Really? Is this diversity jurisdiction? Fed question jurisdiction? A conflict between States and a foreign power? Which part of Article three creates jurisdiction? And if you think it's fed question, then under what power to legislate did the Congress create the federal question? The commerce clause? Or are you saying that Congress can create a federal question simply by granding federal question jurisdiction?

Nice platitude you have there but you apparently don't know jack about Article III. I'd recommend 3 years of law school, then get back to me ...


72 posted on 03/22/2005 6:13:33 PM PST by New Orleans Slim
[ Post Reply | Private Reply | To 40 | View Replies]

To: MomwithHope

Why don't we just have Geraldo go in there and interview her.


73 posted on 03/22/2005 6:16:04 PM PST by Hildy
[ Post Reply | Private Reply | To 6 | View Replies]

To: bvw

well, I suggest you get your children's wishes now. Don't you even care what their wishes would be?


74 posted on 03/22/2005 6:16:55 PM PST by Hildy
[ Post Reply | Private Reply | To 41 | View Replies]

To: bvw

well, I suggest you get your children's wishes now. Don't you even care what their wishes would be?


75 posted on 03/22/2005 6:16:59 PM PST by Hildy
[ Post Reply | Private Reply | To 41 | View Replies]

To: MortMan
Judge Whittemore has asserted that Felos "owed a duty of care" to Terri. I note that, from this excerpt, there is no statement that this duty was fulfilled.

I also found this a bizarre finding. How can the judge decide that said duty of care was fulfilled without hearing testimony? The legislation required a de novo finding of fact.

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme

The legislation requires that he, Judge Whitmore, set aside the findings in the original trial court and retry the case, de nova. I.e. the findings of fact must be his, after trial, and not those of another court.

76 posted on 03/22/2005 6:21:56 PM PST by AndyJackson
[ Post Reply | Private Reply | To 15 | View Replies]

To: AndyJackson

I completely agree with you.


77 posted on 03/22/2005 6:23:54 PM PST by MortMan (CON is the opposite of PRO. Is Congress therefore the opposite of progress?)
[ Post Reply | Private Reply | To 76 | View Replies]

To: Hildy
Why don't we just have Geraldo go in there and interview her.

BWHAAAHAHHHHHHH!

78 posted on 03/22/2005 6:31:27 PM PST by the Deejay ( I'LL RESPECT YOUR OPINION....IF YOU'LL RESPECT MINE.....)
[ Post Reply | Private Reply | To 73 | View Replies]

To: Hildy
Nope. There's only one -- Life. Basic primal, fight to the death it is. Don't care what your wish is otherwise.

Suicide is illegal.

79 posted on 03/22/2005 6:33:01 PM PST by bvw
[ Post Reply | Private Reply | To 75 | View Replies]

To: bvw
Suicide is illegal.

How many have been brought back to face justice?

80 posted on 03/22/2005 6:35:13 PM PST by the Deejay ( I'LL RESPECT YOUR OPINION....IF YOU'LL RESPECT MINE.....)
[ Post Reply | Private Reply | To 79 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-8081-97 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Bloggers & Personal
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson