Posted on 03/26/2005 1:34:45 AM PST by Destro
March 25, 2005
COMMENTARY
Why Schiavo's Parents Didn't Have a Case
By Andrew Cohen, Andrew Cohen is CBS News' legal analyst.
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause — and soon probably their daughter — because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make — those arguments having been reasonably rejected by state judge after judge — and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
(Excerpt) Read more at latimes.com ...
Or he could have disqualified his status as guardian for a conflict of interest.
There are a myriad of things he could have found if he didn't wish her to die in this gruesome manner.
What just dumbfounds me is the people who try to play the moral equivalence card in this when his shack up is mentioned.
"Well! We can't expect him to remain celibate all this time can we? He has to get on with his life as some point."
Then why get married in the first place? And if you can't live up to the vows then get divorced and move on.
This guy is trying to have it both ways.
Spouses are not the guardians - they are the proxy.
If the law allows that then the law is an ass.
If the Schindlers were the guardians they'd also be the proxy
798.01. Living in open adultery
Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is married, both parties so living shall be deemed to be guilty of the offense provided for in this section.
Bummer. I was shooting for derisive sarcasm instead. Please put me in your scoundrel column as I've not enough power to qualify as an effective tyrant.
Under Florida statue the husband is the proxy
If he had been disqualified as guardian, AS HE SHOULD HAVE BEEN, then proxyhood would have fallen to the Schindlers.
He has to be convicted of adultery first for Greer to consider it way back when he made his decision.
With your argument, our black people would still be slaves..This is about the right of persons to LIVE. There is NO evidence that Terri wanted to die. If Michael Schiavo's word stands on this, then Scott Petersen should be released from prison. Scott's quest to rid himself of his wife was complicated by the fact that she was only pregnant. We do not know how Terri came to be in her condition but we do know that Michael Schiavo was determined, after the generous settlement, to see her dead. In the country this is called, "Having the fox watch the chickenhouse."
So has Judge Greer been the only judge to rule on the facts and the other judges have ruled on procedure, or has each of these judges been involved in ruling on the same facts as Judge Greer?
But once disqualified from guardianhood, everything would restart from scratch. The Schindlers could have called it off.
He is not disqualified of proxyhood though and this is KEY - NOT ONE OF THE LEGAL APPEALS HAS SOUGHT TO DO THAT.
Bigtime ditto.
A conviction on adultery would have sufficed. However good ole boy Rice, the sheriff, would never have charged him.
Here's the legal prescedent that Destro wanted us to proved backing up our arguement against Michael Schiavo as Terri's guardian. This is also the Florida law that Judge Greer is ignoring in this case.
Under Florida Law, an incapacitated person has certain rights that may be removed from them. Most states specify the right to marry and divorce. Under Florida Law, only the right to MARRY is listed, not the right to DIVORCE. In addition, the guardian is given the rights to sue, which again bring in the conflict of interest, since under Florida law the right to divorce IS NOT listed as a right that may be removed, so the incapacitated person still has that right, and the guardian is the one with the right to sue, which conflicts with Terri's interest in divorce.
2) Rights that may be removed from a person by an order determining incapacity include the right:
(a) To marry.
(b) To vote.
(c) To personally apply for government benefits.
(d) To have a driver's license.
(e) To travel.
(f) To seek or retain employment.
(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:
(a) To contract.
(b) To sue and defend lawsuits.
(c) To apply for government benefits.
(d) To manage property or to make any gift or disposition of property.
(e) To determine his or her residence.
(f) To consent to medical and mental health treatment.
(g) To make decisions about his or her social environment or other social aspects of his or her life
Under Florida Statute 744.361 the legislature states:
1) The guardian of an incapacitated person may exercise ONLY those rights that have been REMOVED from the ward and delegated to the guardian.
As we already know, the right to divorce, under Florida statute, HAS NOT been removed from Terri.
Under the Florida Rules of Civil Procedure in the Family Law Rules it states:
b) When an infant or incompetent person has a representative such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who DOES NOT HAVE A DULY appointed representative MAY SUE BY NEXT FRIEND or guardian ad litem. The court shall appoint guardian ad litem for an infant or incapacitated person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
So, it could be argued that Terri DOES NOT HAVE A DULY appointed representative to represent her in a divorce action since Florida Statute 744.361 limits HER PRESENT GUARDIAN to exercising ONLY those rights that have been RREMOVED. Thus, she has no guardian who is legally eligible to represent her in a divorce action. So, her NEXT FRIEND may sue on Terri's behalf in a DIVORCE ACTION, or the court should appoint a guardian ad litem.
The definition of DULY means proper or properly. Terri's present guardian, her husband, IS NOT DULY/properly appointed to represent her in a divorce action because Statute 744.361 prohibits him from doing so. Even if he applied for special court approval under 744.3725, Statute 744.361 is in direct conflict with this statute being that the guardian cannot request SPECIFIC AUTHORITY for a right that HAS NOT BEEN REMOVED, the RIGHT TO DIVORCE. Thus, Terri's Next Friend, under the rules of civil procedure, has the right to sue on her behalf.
Florida Statute 744.3215(4), specifically states that Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:
(c) Initiate a petition for dissolution of marriage for the ward.
BUT 744.3725 applies only to incapacitated persons who have a guardian. An incompetent person who does not have a guardian can sue by their next friend and by doing so, they are not subject to meeting the requirements as set forth in Florida Statute 744.3725. The 14th Amendment of the United States Constitution sets forth that : "No state shall make or enforce any law which shall deny to any person the equal protection of the laws." Equal protection requires that those who are similarly situated be treated similarly. Plyler v. Doe, 457 U.S. 202, 216 (1982). The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174 (1980); Vance v. Bradley, 440 U.S. 93, 97 (1979); New Orleans v. Dukes, 427 U.S. 297, 303 (1976). There is no legitimate state interest in requiring an incompetent person who has a guardian to meet a higher burden of proof in a dissolution proceeding than it does of an incompetent person without a guardian.
If Rule 1.210(b) of the Florida Rules of Civil Procedure is read to say that a next friend or guardian ad litem is only allowed to sue on behalf of an incompetent if the incompetent does not have a guardian, then this reading would be in violation of the 14th Amendment Equal Protection Clause of the United States Constitution."Those who are similarly situated should be treated similarly." Those persons who are incompetent and whose spouse is their guardian would be denied the right to sue for divorce on the grounds of adultery, unless their spouse was consenting and willing to sue on their behalf. Those persons who have no guardian could sue through their next friend and their spouse's consent is not required. There is no legitimate state interest in requiring an incompetent person whose spouse is their guardian to sue through their guardian when there are other safeguards in place that are less restrictive and do the job as well.
744.3725(6) is in violation of the 14th Amendment Equal Protection Clause. It requires an incompetent woman to obtain her spouse's consent for dissolution on the grounds of adultery, but does not require the same of a competent woman."Those who are similarly situated should be treated similarly." There is no legitimate state interest in requiring an incompetent person to obtain their spouse's consent for dissolution on the grounds of adultery. The state's interest is to preserve the integrity of marriage and to safeguard meaningful family relationships. Here, there is no integrity to a marriage where the husband openly lives in adultery, living with and fathering two children with his "fiancé" while still married to the petitioner. There is no meaningful family relationship to safeguard.
These statutes are also in violation of the Due Process Clause. Divorce, on the grounds of adultery, IS a fundamental right. The right to marry is a fundamental right, and the right to divorce on the grounds of adultery is a fundamental right. This right has existed, at least, since the Bible was written. There is a tradition and current community consensus that the right to petition for dissolution on the grounds of adultery should be protected. The right to divorce on the grounds of adultery is deeply rooted in this nation's history and traditions. The right to divorce on the grounds of adultery was a right at common law and has been a part of this nation's states' laws in their statutes throughout history and it is a part of current state law. 744.3725 and 1.210(b) set up an arbitrary imposition and a purposeless restraint at odds with the due process clause. There is NO legitimate moral state interest in requiring spousal consent for dissolution on the grounds of adultery in regards to an incompetent person. There is NO legitimate moral state interest in prohibiting a next of friend to sue on an incompetent's behalf when the incompetent's guardian is her spouse. I understand that the state's interest is in protecting the spouse from a no-fault dissolution brought about by a disgruntled person. But when there is a less restrictive means that would do the job as well (protect spouse from a no-fault dissolution) and preserve the rights of the incompetent to petition for dissolution on the grounds of adultery, then it is unconstitutional. The court should direct that Michael's guardianship be terminated due to "conflict of interest" and a new guardian appointed to represent Terri's interests and sue on her behalf for dissolution on the grounds of adultery.
And the left thinks we're paranoid because we want to keep our guns!
Comparing this to slavery is laughable - shows ignorance of common law, judicial law and tradition.
OK focus once more the husband is THE PROXY. Please use the right legal definition.
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