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.
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.
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.
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.
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.
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.
States don't have rights genius.
Of course it is, so you can ell the dems to stop fillibustering judges any time now.
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.
It seems that Greer's a priori beliefs are an insurmountable obstacle to overcome.
"States don't have rights genius."
Take a hike, you liberal. States' Rights is a pillar of modern conservatism.
"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 ...
Why don't we just have Geraldo go in there and interview her.
well, I suggest you get your children's wishes now. Don't you even care what their wishes would be?
well, I suggest you get your children's wishes now. Don't you even care what their wishes would be?
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.
I completely agree with you.
BWHAAAHAHHHHHHH!
Suicide is illegal.
How many have been brought back to face justice?
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