Douglas Kmiec’s April Fooler
Pepperdine Law Professor Douglas Kmiec has a lengthy column on Terri Schiavo’s case in today’s Orange County Register, with no link available yet (UPDATE: it’s online now). Most of the article, titled “We Can’t Move On Just Yet,” is very thoughtful and well worth a read. However, the two paragraphs devoted to what passes for legal analysis are worth reading for one reason only: fisking. Here goes.
Congress’ hastily drafted legislation was likely unconstitutional a dozen ways over.
Upon reading that, you might think that a “dozen” means 12, and that “unconstitutional” means “violates some identifiable provision in the U.S. Constitution.” Nah, that’s just what it means to us commoners. To a baker, a “dozen” means 13. To Kmiec, it means 3, and “unconstitutional” means “I don’t like it.” Here’s the first of the Kmiec’s dozen “constitutional” objections to Congress’s law for Terri Schiavo:
It purported to allow legislative revision of a settled case contrary to principles of the separation of powers, federalism and a host of federal rules that established finality.
That, of course, is a blatant violation of the 28th Amendment, which provides that:
Congress shall have no power to allow legislative revision of a settled case contrary to principles of the separation of powers, federalism and a host of federal rules that established finality. Yeah, we really mean that Congress, whose job it is to create federal rules, can’t create new federal rules to change that result.
No, wait, I lied. There is no 28th Amendment. The closest thing there is, the Full Faith and Credit Clause of Article IV, applies only to the states. Even the double-jeopardy clause of the Fifth Amendment, which bars the states and the federal government from bringing successive criminal cases, does not preclude the federal government from re-litigating in federal court any matters that have already been determined in state court. So for all the talk of a “constitutional” violation, all we’re left with is a bunch of emanations and penumbras no conservative law professor has any business caring about.
It singled out Terri for highly different treatment from everyone else, thereby contravening fundamental aspects of equality and the rule of law prescribing that legal rules be general and prospective in nature.
Which, of course, violates the 29th Amendment, which says… you get the drift. Far from prohibiting laws applicable to specific individuals (which, by the way, it does all the time, usually with no fanfare), the framers of the Constitution actually contemplated such practice. If the framers of the Constitution thought all laws applicable to specific individuals were unconstitutional, it would have made no sense whatsoever to ban bills of attainder in particular. Why ban specifically what is already banned generally?
Completing his “Kmiec’s dozen” of allegedly constitutional objections, the professor writes:
Most of all, the midnight law was premised upon no discernible legislative power – and in a government of enumerated authority, that is hardly inconsequential.
Nor, I might add, is it true. Article III grants Congress broad powers to make whatever exceptions and regulations it wants to federal court jurisdiction on any matters raising questions of federal law. Unfortunately, that’s all Congress did. However, it could have done more than that – much more – by exercising its enumerated power under Amendment 14, which appears to have been left out of Professor Kmiec’s version of the Constitution. Had he bothered to read it, he would know that all states are prohibited from “depriv[ing] any person of life, liberty, or property, without due process of law,” and that Congress has every right to enforce that prohibition by enacting appropriate legislation. But hey, why let that pesky Constitution get in the way of a good “constitutional” rant?
It would seem the only thing in favor of Congress’ legislation was the reasoned belief that all life is valuable – yes, inalienable. But then, like law’s otherwise imperfect coincidence with morality, that proposition in the Declaration of Independence has been largely aspiration, not formal law.
Unlike the idle musings of a law professor over “constitutional” principles that appear nowhere in the Constitution. Those aspirations, of course, are to be considered formal law.
April 1st, 2005 at 1:29 pm
Best argument yet I read was the cuncurrence in the latest 11th circuit denial for rehearing en banc.
It would be instructive to hear counter-arguments to that.
April 1st, 2005 at 1:33 pm
Already been done. Read Judge Tjoflat’s dissenting opinion in that same case. [UPDATE: LegalXXX does a pretty good job, too.]
April 1st, 2005 at 2:42 pm
Have you fully weighed in on the state action issue, X? Was there state action? Can there be a 14th Amendment violation without it?
April 1st, 2005 at 2:56 pm
Of course there can’t be a Fourteenth Amendment violation without a state action, but the notion that there wasn’t one is insane. As far as I can determine, Kmiec hasn’t raised it anyway.
April 1st, 2005 at 11:04 pm
You are the first blogger I’ve read (and I read a number) to mention what I’ve been putting in comments: it not only is NOT illegal in any way for the Federal Congress to pass a law specifying – even naming – a single person, it is done every year for a number of reasons.
April 2nd, 2005 at 8:48 am
X,
If the notion that there was no state action here was “insane” then I’ll agree that it was a travesty for the federal courts to refuse a stay. But the District Court cited case law indicating that there was no state action. On my own site I took a stab at raising the state action issue but didn’t get much commentary on the topic.
If you have any authority and arguments that there was state action in the Schiavo case, then you will have made what I believe is the best argument that the courts screwed it up. I’d love to see it.
April 2nd, 2005 at 9:35 am
I don’t have time to read the case right now, but if you point me in the right direction I’ll read it later. I’m willing to bet 10:1 that the case doesn’t lead to the conclusion that there was no state action in Terri Schiavo’s death. If it does, then the only question is which federal judge’s head ought to roll, not whether somebody’s should.
On the flip side, suppose that the Florida courts all got Florida law right. Basically, Florida law said “Terri Schiavo shall starve to death.” Now was there a state action? Or is the Legislature exempt, too?
April 2nd, 2005 at 9:48 am
I’m on a Treo now, so it’s probably easier for you to find it. Go to my site and plug “state action” into the search engine and you’ll find it.
I have seen the state action issue as central from the beginning, and my one real question regarding the District Court’s decision was his holding that there was no state action. But my recollection is that even you didn’t agree with me. Do I remember that wrong?
I knew the District Court judge was wrong when he said Judge Greer was not a state actor, but I couldn’t be as certain regarding the existence of state action.
In fact, once I had it established that 14th Amendment state action was the same thing as “under color of state law” (or words to that effect) for section 1983 claims, it looked to me like Judge Whittemore had gotten it right.
Go back and take a look and tell me what you think.
April 2nd, 2005 at 9:50 am
I think we should bring the Clam in on this discussion.
April 2nd, 2005 at 10:35 am
Oh I see how it is Patterico!…I’m offended…alright not really.
April 2nd, 2005 at 9:21 pm
OK, for whoever has free Lexis or Westlaw, the case in question is Paisey v. Vitale, 807 F.2d 889 (11th Cir. 1986).
April 2nd, 2005 at 10:08 pm
And? What is your conclusion?
April 2nd, 2005 at 10:15 pm
That I’m not going to read it until someone can get me a copy without running up a Lexis bill.
April 3rd, 2005 at 7:14 am
The Court recognized that state action had been found in situations when purely private litigation had resulted in a state court judgment that was subject to immediate enforcement by the state. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 13-14, 92 L. Ed. 1161, 68 S. Ct. 836 (1948) (state enforcement of a private discriminatory contract violates the Fourteenth Amendment); New York Times v. Sullivan, 376 U.S. 254, 265, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) (exercise of state power found in application by Alabama Supreme Court of state rule of law that allegedly violated constitutional freedoms of speech and press). The common element in those cases, however, was that state action was found “after a final judgment or otherwise dispositive order on the merits had been rendered by the state court.” Henry I, 444 F.2d at 1309 (emphasis in original). In Henry I, however, there had been no final judgment entered in the state court proceeding and the Court refused [**14] to hold that the mere filing of a state law tort action could create the requisite state involvement.
It seems like from reading the case there is an action under color of state law once the matter is finally adjudicated in state court, in Paisey, the case was about merely bringing the case in state court. However that was a very quick read.
April 3rd, 2005 at 8:04 am
I think that’s a little broad.
Clam to the rescue??
April 3rd, 2005 at 11:59 am
I just read the case myself. Here’s an HTML version. All it says is that if someone brings an unlawful suit against you (in this case, a retaliatory suit against a whisteblower), you can’t sue the judge merely for hearing the case.
April 3rd, 2005 at 6:23 pm
“All it says is that if someone brings an unlawful suit against you (in this case, a retaliatory suit against a whisteblower), you can’t sue the judge merely for hearing the case.”
I read as there not being state action when a judge finds against you in a civil suit, but there would be if the judge somehow improperly worked with one of the parties against you.
April 4th, 2005 at 6:51 am
The whole purpose of the Fed legislation was never to save Terri Schiavo. It was to innoculate various congressional legislators with the moral right..Everyone voting for it knew it would never pass Constitutional muster..you know “it’s the thought that counts”.
April 4th, 2005 at 7:03 am
No, I don’t know, and I’m not convinced you do, either.. What evidence do you have that the law was unconstitutional, let alone that any of the Congressmen voting on it believed it to be?
April 4th, 2005 at 8:29 am
There were other cases cited by Whittemore.
You are pretty contemptuous of Kmiec and anyone else who doesn’t see a 14th Amendment violation here. Shouldn’t you have a developed theory of why there was state action?
April 4th, 2005 at 8:53 am
I’d like to hear more about your state action argument, I’m thinking about writing a paper on the incompetence of the parent’s lawyers.
April 4th, 2005 at 11:11 am
Not exactly. Whittemore treated color of law for purposes of § 1983 as a throwaway issue, confining it to a footnote, and ignored Amendment 14 completely. If that means the Schindlers’ lawyers didn’t raise it, then I agree with Actus that their incompetence might be a good subject for a paper. Still, as an allegedly neutral judge, Whittemore should have dealt with the issue, as at least the two dissenting appellate judges did. Instead, he cited three cases (Cobb v. Ga. Power Co., 757 F. 2d 1248, 1251 (11th Cir. 1985), Harvey v. Harvey, 949 F. 2d 1127 (11th Cir. 1992), and Dahl v. Akin, 630 F. 2d 277, 281 (5th Cir. 1980)) to address the Schindlers’ borderline frivolous argument (assuming they actually made it, as opposed to Whittemore mischaracterizing it as such) that Michael Schiavo was a state actor with § 1983 liability solely by virtue of having used the court system, and three other cases (S.F. Arts and Athletics, Inc. v. U.S. Olympic Comm., 485 U.S. 522, 544 (1987), Blum v. Yaretsky, 457 U.S. 991 1011 (1982), and Rendell-Baker v. Kohn, 477 U.S. 830, 840 (1982)) to address the equally frivolous argument that the Hospice was a state actor because it receives funding from the government. The only case he cited for the proposition that the State of Florida is not a “state” was Paisey v. Vitale, which didn’t come close to addressing that (although it did address the much sillier issue of whether Judge Greer became liable under § 1983 merely by virtue of acting as a judge, as opposed to ruling the way he did).
Not true. I am indeed contemptuous of people who throw around the word “unconstitutional” to apply to just about anything they don’t like. I used to think only liberals resorted to that cheap stunt, but apparently I was wrong about that. Well, I’m equally contemptuous of conservatives who do it. If anything more so; as a conservative myself I’m more likely to be smeared by association. If Kmiec had offered some alternative theory of the 14th Amendment that made it clearly inapplicable to the Schiavo case, that would be fine, although it bears noting that it still wouldn’t make of his three “constitutional” objections any more valid than they are. The first two have nothing to do with the Constitution at all, while the third, enumerated powers, is met by Article III whether there’s a 14th Amendment issue or not.
I don’t see the point of developing a theory of why the earth really is round, the sky really is blue, or the State of Florida really is a state. To the best of my knowledge, no court has ever ruled that, and the one case that is bandied about as though it did actually says the opposite as to cases where a final judgment had been entered and was subject to immediate enforcement. Even Judge Whittemore isn’t arguing that court judgments aren’t state actions; only you are, and that based on a clear misreading of a case Whittemore himself fudged a bit.
Rather than prove the obvious (courts are part of the state, and final, enforceable judgments are law), let’s consider what other nutty stuff states could and probably would do if court rulings were not considered “state actions.” Ron Goldman is no more of a state actor than Michael Schiavo is, nor is the court that found O.J. liable for wrongful death any more of a state than Judge Greer’s court is (I assume you’re not arguing that some states’ courts are “states” while other states’ courts are not). Nor is the privately owned, publicly funded “hospice” which is ready, willing and able to detain O.J. The police surrounding the facility to keep his fans at bay are state actors, of course, but for some reason they don’t count.
Of course, if Goldman were to have his paid thugs “arrest” O.J. and stick him in a building he can’t escape from until he starves to death, that would violate several laws. So suppose we get the Legislature involved just a leetle. Have them pass a new statute allowing anyone whose son or daughter has been wrongfully killed by anyone to become the killer’s “guardian,” vested with the sole discretion to decide where, or if, that person lives. This is a civil statute, not a criminal one, so retroactivity poses no not a problem. Just to be really, really fair to unconvicted killers, let’s make their would-be guardians prove his guilt by the highest standard applicable to any crivil statutes – “clear and convincing” evidence. Constitutional?
April 4th, 2005 at 11:19 am
Of course, no judge in his or her right mind is going to concede that whenever there is a final judgment that a state action has occurred. That concedes too much, and judges like to think of themselves as sui generis as to the political branches. Look however at the portion of the case that I quoted. I’ll quote a most relevant portion again…The common element in those cases, however, was that state action was found “after a final judgment or otherwise dispositive order on the merits had been rendered by the state court.”
I don’t see however how, a state court issuing a a “final judgment or otherwise dispositive order on the merits” could be something other than a state action. I suppose rather than argue that it could possibly not be a state action or searching for cases (that may or may not exist, as it’s probably not a hotly litigated issue, the best case for lack of a state action might be a jury trial where the jury finds against the defendent in a civil suit perhaps one could argue the actor is hmm… the jury and the parties maybe, but that argument got answered by the Supreme Court in New York Times Co v. Sullivan
We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court — that “The Fourteenth Amendment is directed against State action and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e. g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.
I more see the burden here lying on those suggesting it’s not a state action. I’d be interested in seeing a case where an order was made by a judge to do something and a court found that not to be a state action.
April 4th, 2005 at 11:39 am
The only situation I can see where such a ruling would not be a “state action” is where a § 1983 action is brought against the judge himself, and where his ruling was a reasonable extension of the law as written. That should get the judge off the hook for a § 1983 action, but it doesn’t mean there is no state action. It means that the relevant state action was the Legislature’s act of passing the challenged law, not the judge’s correct application of it.
As applied to Terri, that means that there only five possible outcomes under the 14th Amendment:
April 4th, 2005 at 1:46 pm
On second thought, who needs wacky hypos when real cases will do? Take Bush v. Gore, decided on 14th Amendment grounds. If court rulings were not state actions, there would have been nothing for the U.S. Supreme Court to review.
April 4th, 2005 at 4:43 pm
I don’t recall that case being about court rulings so much as local election officials applying inconsistent standards under the Equal Protection Clause.
April 4th, 2005 at 5:47 pm
It was about one court ordering local election officials to apply inconsistent standards. The underlying Florida statutes, which allowed each locality to do its own thing, were not affected by the ruling. Only the Florida Supreme Court’s order was.
How about my other example, a Florida statute authorizing Fred Goldman to have O.J. bumped off? Or are you ready to return to earth and concede that court rulings are state actions, just like the actions of the other two branches are?
BTW, it’s not hard to come up with executive and legislative equivalents of the Paisey case. Imagine if someone were to sue a Cabinet member for proposing that the President take action which, if actually taken, would arguably violate the Constitution or other applicable law. Or suppose a Congressman proposed an allegedly unconstitutional statute, but rather than wait to see if it passes, some triggerhappy litigator sues him personally. I have little doubt that both cases would fall flat, both on the theory that there was no state action. It doesn’t follow, however, that no actions taken by the executive, legislative or judicial branches of the government constitute state actions.
April 4th, 2005 at 8:57 pm
Just in case the state action horse isn’t completely dead yet, suppose that a judge in New York issues an injunction against the New York Times, ordering it on pain of contempt to cease reporting on any political issues whatsoever. Assume that no written statutes in New York actually support that ruling, but it is nevertheless upheld by the Court of Appeals (N.Y. equivalent of Supreme Court). Can this injunction be appealed to the U.S. Supreme Court? If so, on what basis?
April 4th, 2005 at 9:15 pm
X,
I can’t read all the relevant cases on my Treo, nor do I have time to. I see that you are assuming that I am arguing there is no state action. Then you mock me for that argument. But I’m not making that argument.
I was very interested in the 14th Amendment argument, and read Judge Whittemore’s opinion and the cases he cited on the state action issue. My memory is that, given the principle that “under color of state law” is equivalent to state action for 14th Amendment purposes, the judge’s cases did a good job of showing that there was no state action here.
I think you are making unwarranted (and vitriolic) assumptions about my position. More legal analysis please. Can you address the points I raise here?
April 4th, 2005 at 9:36 pm
I’ll try, but first you’ll have to clarify what your argument is. It sounded like you were arguing that court rulings aren’t state actions. If that’s not your position, what is?
April 4th, 2005 at 9:59 pm
I don’t have a position. I am looking for a critique of Whittemore’s position on the 14th Amendment.
I thought the section 1983 cases answered the question, because state action for the 14th Amendment is the same as “under color of state law” for section 1983. I’d like a response to that.
April 5th, 2005 at 5:26 am
My head hurts…
April 5th, 2005 at 7:23 am
First, while the state action doctrine clearly does mean the same thing as to every applicable Constitutional provision (see my above examples, real and hypothetical), it emphatically does not mean the same thing as the color of law prong of a 1983 action. Here’s footnote 6 to Paisey:
Second, assuming that state action and color of law do mean roughly the same thing in the Paisey case, Paisey’s suit didn’t fail against the judge on the theory that she was not a state actor. It failed against the (private) university on that basis, but it failed against the judge because she didn’t deprive him of any rights merely by hearing the case. Basically, Paisey tried to tie the university’s attempt to deprive him of a right (bringing a retaliatory case against him) to the judge’s “color of law” (hearing that case) to bring a 1983 action against both. The Court of Appeal said nice try, but no dice because there’s no evidence the judge and the university acted “in pari materia.”
In other words, Paisey refutes the idea that Judge Greer violated Terri Schiavo’s rights solely by being a probate judge. It tells us nothing else.
April 5th, 2005 at 12:07 pm
I think we’re getting there. Let’s review what I think we have established:
1. The case cited by Whittemore says that the “under color of state law” requirement of section 1983 is not satisfied merely because a private party brings a lawsuit in a state-run court. (Cases like Shelley v. Kraemer forming a limited exception.)
2. State action for the 14th Amendment is equivalent to “under color of state law” for purposes of section 1983. (Note that I never posited an equivalence between the two prongs of section 1983.)
3. Applying the transitive property, Whittemore’s citation of a section 1983 case showing no action “under color of state law” when a private party files a lawsuit means that there would also be no state action under the 14th Amendment in that circumstance — again, as a general rule.
Are we in agreement so far? If so, tell me the short legal argument for finding state action for 14th Amendment purposes in the Schiavo case. Don’t give me a complicated example, just a concise legal argument.
April 5th, 2005 at 1:21 pm
I assume that, if the purported failure of the state is not requiring clear and convincing evidence of Terri Schiavo’s wishes, that is a de facto failure of the courts and not a de jure failure of the legislature.
April 5th, 2005 at 1:27 pm
We are in agreement on #1, but not on #2. Re-read Footnote 6 to Paisey (see comment 33), which makes it clear that state action for purposes of 14th Amendment (or, for that matter, the rest of the Constitution) is not the same thing as the “color of law” requirement of § 1983.
Even if the two tests were equivalent – and for this example, I suppose they might as well be – #3 would not follow. Judging is absolutely, positively and unequivocally a state action. That was not the issue in Paisey. The problem was Judge Vitale’s state action (judging) had nothing to do with allegedly wrongful conduct brought by the other defendant (Nova University). What Mr. Paisey attempted to argue, in a nutshell, is this:
Hans deprived me of my rights.
Franz acted under color of law.
Therefore, Hans and Franz acted under color of law to deprive me of my rights.
The missing element, of course, is any meaningful nexus between Hans’s wrongful action and Franz’s state action. Thus, any § 1983 action against Hans and Franz must fail against both defendants, but not for the same reason. Hans’s defense is that he didn’t act under color of law. Franz’s is that he didn’t deprive anyone of his rights.
April 5th, 2005 at 1:52 pm
I think the footnote you refer to deals with state action under section 1983. As I understand it, state action for the 14th Amendment is quite a different matter, and is analogous to the “under color of state law” prong of section 1983. I believe Matto Ichiban provided the authority for that in a comment to one of my posts on the issue.
April 5th, 2005 at 1:55 pm
If judging is a state action, isn’t every wrongly decided contract action potentially a 14th Amendment violation? What’s the difference?
April 5th, 2005 at 2:26 pm
I don’t believe there is a separate “state action” requirement under 1983. My tentative view, pending a reading of both Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) (two separate areas of inquiry) and Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 930 (1982) (Matto’s case) is that “state action” under 1983 is just another name for the “color of law” requirement, which courts formerly treated as equivalent of the constitutional “state action” doctrine, but which, as noted in that footnote, is now considered a wholly separate inquiry. However, the state action doctrine is uniform within the Constitution, e.g., what counts as a state action for purposes of Amendment 14 will also count as a state action for any other relevant article or amendment (where “relevant” means everything except the slavery ban of Amendment 13, the bootlegging provision of Amendment 21, and national prohibition while Amendment 18 was in force).
I agree that every wrongly decided contract (or, for that matter, any wrongly decided case of any kind) isn’t an automatic 14th Amendment violation. The reason, however, has nothing to do with the state action doctrine. Rather, it has to do with the fact that the 14th Amendment by its terms guarantees only due process, not a substantively correct result. So an unfair trial by a corrupt judge may well give rise to a 14th Amendment challenge in federal court, which would be impossible if judging were not considered a state action.
Conversely, if judging were not a state action, what constitutional barrier would there be to my above example of an injunction imposing a prior restraint on free speech? Surely a “state action” can’t mean one thing while interpreting the due process clause directly, and something completely different when using that very same clause as the vehicle to “incorporate” some other amendment!
April 5th, 2005 at 2:39 pm
I completely agree with Xrlq’s in Comment 39.
April 5th, 2005 at 4:02 pm
X,
What about comment 3 to my post “Calling all lawyers”?
April 5th, 2005 at 4:15 pm
See comment 13 to the same thread. The case law appears to be a bit muddier than I thought. Nevertheless, bear in mind the increasingly confusing case law on state action vs. color of law is only tangentially related to this thread. Whether they are completely different, the same, or (most likely) closely related, I have no doubt that judging is both a “state action” for purposes of the entire Constitution and “color of law” for purposes of 1983.
April 5th, 2005 at 5:21 pm
Sorry for the terseness of my comment. Die Walküre was about to begin. I’m now at the first intermission.
My reading of the cases is not expert, but here it is FWIW:
Under section 1983 there are two inquiries: 1) action under color of law that deprives someone of 2) a right secured under the Constitution. But, to have the latter, you must have action attributable to the state — a different inquiry than whether it’s done under color of state law. A court judgment counts only when the litigation amounts to the state’s conferring on a private party, through the court judgment, authority that is typically entrusted to the states (like overseeing the conduct of an election, e.g., as opposed to a purely private matter like a contractual dispute).
If I’m right, then the issue is whether making the determination of Terri Schiavo’s wishes is traditionally a state function, being entrusted through litigation to a private party. If the answer is yes — and I would have thought there is a good argument that it is — then there is a potential Constitutional right at issue.
I am not a scholar in this area, but this is what my admittedly limited research indicates to me.
April 5th, 2005 at 6:34 pm
I think you have it backwards. The color of law element is the part that requires an act to be attributable to the state; the mere existence of a constitutional or statutory right (1983 covers both) does not. If I were to somehow prevent you from expressing your views, you would indeed be deprived of a right secured by the U.S. Constitution – freedom of speech – but could not sue me under 1983 because I did not act under color of law, nor under the 1st and 14th Amendments because none of my actions can reasonably be imputed to any state.
If, on the other hand, I were to enslave you, or extract illegal profits from you in violation of federal antitrust laws, or do anything else to deprive you of constitutional or statutory rights not subject to the state action doctrine, you could sue me under those laws but not under § 1983, the reason being that while I ddi deprive you of a constitutional or statutory right, I did not do so under color of law, which the underlying law does not require but § 1983 does.
The problem with your effort to carve out state vs. non-state actions by the judiciary is twofold. First, the notion that any official act of a judge can be anything other than a state action flies in the face of any commensense definition of the word “state.” Second, it proves too much. I have no doubt that a corrupt, racist judge who intentionally screwed over all black litigants who entered his court to the benefit of their white opponents would violate both § 1983 and the 14th Amendment, regardless of what kinds of cases he was ruling on. I can’t imagine he’d get away with it solely by limiting his racist rulings to contract cases.
Finally, I don’t think it is factually correct that Judge Greer entrusted Michael Schiavo with the adjudicative role of determining what Terri’s wishes were. Didn’t Greer himself rule that her wishes were to die, based on the unclear and unconvincing evidence of three Schiavos saying so?
April 5th, 2005 at 7:28 pm
Second intermission.
Again, I could be wrong, but I think that freedom of speech means only the freedom to speak without governmental interference. I don’t think you have deprived me of a constitutional right in your example, unless your actions are attributable to the state. That’s how I read the cases.
It may or may not be a purely semantic point; I’m not sure.
I think you’re right that the judge made the decision himself, but he left it to Schiavo to implement. Interesting question whether Schiavo could change his mind and not remove the tube. Greer’s order authorized, and did not mandate, the removal of the tube.
Do you concede my point number 2 above now? At least based on the current state of Supreme Court law on the subject? Why or why not — and if you do, what say you to point #3?
Interesting (and important) discussion.
April 5th, 2005 at 8:01 pm
As to point #2, my position is “splunge.” It’s clear that “color of law” under § 1983 is closely related to the state action doctrine; whether the two are identical or not, I don’t know. I like to think that a § 1983 action could be brought against a private party who impersonates a cop, or otherwise purports to act under state authority he does not actually have, and for which the state cannot be properly blamed (i.e., no real state action, and therefore no underlying constitutional violation).
I don’t see where state action intrudes on the “deprived of a right” prong. As mentioned above, § 1983 is not confined to rights secured only against the government, but to other statutory and constitutional rights, as well. IOW, I think the two prong test in plain English is:
1. Did the act deprive you of a right?
2. Did the state / someone with government authority do it?
The answer to #1 does not depend on whether or not the person doing the activity is a state actor or not. Thus, it was met in Paisey in the case of the university. Where it failed was under #2, due to the fact that the university was not a state, and did not act in concert with the judge (for whom prong #2 was met, but not #1).
#3 is too sloppy for my taste. If a plaintiff P wrongfully brings an oppressive suit against defendant D before Judge J, D will ordinarily not be able to counter-sue P or J under § 1983, but for different reasons. P’s defense will be that he is not a state actor, while J’s will be that he has not deprived D of any rights merely by providing a forum to hear the case. So it’s wrong to say there is “no state action.” There’s plenty of state action, it just has nothing to do with D’s oppressive conduct.
As to Greer’s order, Schiavo’s lawyer certainly claimed it would stand even if Michael Schiavo walked away from the case. I don’t know that to be true, and frankly, I don’t trust Felos farther than I can throw him. I don’t know that it matters, though, since the order did a lot more than authorize Michael Schiavo to kill his wife. It also provided police “protection” to make sure this legalized murder went forward without interruption. So there’s no shortage of state action here, only a sick argument that none of it deprived Terri of any legal or constitutional rights.
April 5th, 2005 at 9:43 pm
Re: the two prongs of 1983 — from the Flagg Brothers’ case:
April 5th, 2005 at 9:51 pm
Let me ask you this: are you looking at Whittemore’s order re the second complaint? That’s the one that rules on the likelihood of success of the 14th Amendment claim.
I don’t want to discuss the order re the likelihood of success of the pathetic and frivolous claims raised in the first lawsuit.
April 5th, 2005 at 11:25 pm
Actually, it seems I have been looking at the wrong opinion. That’s why Paisey was the only case I found for Greer “not being a state actor” solely because he was a judge. Upon reading what I assume to be the right one, I don’t find Judge Whittemore’s reasoning to be any better. Count Eight is the first due process argument, where Judge Whittemore notes that the 14th Amendment under Cruzan allows a state to require clear and convincing evidence before starving a patient to death, while refusing to entertain the possibility that the 14th Amendment might actually require such evidence – or, for that matter, any evidence at all. He simply tossed that issue aside as “a matter of state law, not federal constitutional law.”
Then, while discussing Count Nine (a frivolous Eighth Amendment challenge), the judge states out of the blue that “Finally, as the court has previously noted, Michael Schiavo and Judge Greer are not state actors.” See Kirtley [v. Rainey], 326 [sic, 323] F. 3d [1088,] at 1092-96, Harvey [v. Harvey], 949 F. 2d at [1127,] 133-34 [sic]; Torres v. First State Bank of Sierra Cty., 588 F. 2d 1322, 1326-27 (10th Cir. 1978). I haven’t read those cases, as none are available on Findlaw [Joel, Chris, or any other law students, are you still following this thread? Help!] but I do recall you [Patterico] mentioning on your blog that one of those cases, Harvey, said precisely the opposite of what Judge Whittemore claimed it said (to quote you quoting Harvey, “A county probate judge clearly is a state actor”). Besides, if Judge Whittemore really believed that crap about judging not being a state action, why didn’t he bring that up in the discussion of Count Eight, the first count alleging a constitutional violation?
I’ve been arguing over the last few days that judges should be impeached for bad behavior when they issue rulings that are clearly unsupportable by law. Maybe that’s the wrong tack. Maybe the real solution is to relieve them of their duties for lack of competence. Any lawyer who advised a client that judges aren’t subject to the constitution (which they generally wouldn’t be, if they weren’t state actors) could be sued for malpractice and disbarred for incompetence. Shouldn’t we demand at least as much basic competence from judges as we do from lawyers?
April 6th, 2005 at 11:08 am
The “wishes” rationale is nonsense on its face.
What has happened here is the direct execution of an individual by judicial fiat in violation of the 5th Amendment as well as a generic overreach beyond the constitution itself.
The government does not have the power to willy-nilly execute individuals. Asserting that it is their wish to be executed as the reason belies the sham that this is.
April 6th, 2005 at 1:08 pm
I think you’re right that the judge made the decision himself, but he left it to Schiavo to implement. Interesting question whether Schiavo could change his mind and not remove the tube. Greer’s order authorized, and did not mandate, the removal of the tube.
Not so: Greer’s order is phrased as a commandment to the guardian (Michael, that is) to remove the tube on such-and-such a date at such-and-such a time. The necessary legal fiction in this case was that Greer was carrying out Theresa Schiavo’s purported wishes, and thus Michael had no right to contravene “her wishes” by leaving the tube in place.
Certainly, as I read the order, if he’d failed to have the tube removed he would have been in contempt. Whether – if Michael had changed his mind at the last minute and requested rescindment – Greer would have done it, is an open question. But I think he would have had a hard time justifying the rescindment under this theory of “carrying out her wishes”, unless Michael stated he’d perjured himself or something.
(How the “her wishes” theory ties in with the order forbidding attempts to give her food and water by mouth, I’m not sure. I think his grounds were that feeding was “experimental medical treatment”, but that’s a fairly bizarre idea.)
In any case, the court ordered the tube withdrawn, the court forbade attempts to feed her or give her drink, and sheriff’s deputies were stationed in her room throughout the time she was dying to make sure no one offered her food or water. How is this not state action?
April 6th, 2005 at 1:54 pm
The order to forbid feeding by mouth was based on another order not to perform a “swallow test”. So, between the various orders, there is no question that the intent was to kill (not simply to remove a tube).
Notice that the person, Schiavo, is being disposed of as property by (not surprisingly) a probate judge. This is the only instance where enforcing “wishes” makes sense as the person is already dead. Sensing the problem, Greer rushed the execution order but still could not achieve causality as this would require a temporal-inversion.
The point here is “wishes” is nonsense. A person cannot have their “wishes” enforced by a court unless it is about property and unless they are already dead. Greer never understood this. Apparently, he feels that estate law is equivalent to constitutional law. He is a probate judge–no surprise here. Every problem looks like a nail to a judge with a gavel.
For example, if I “wished” for something, I could not have the government enforce this wish because as soon as they attempted to do that, my mind could be changed. The government can enforce contracts, but this is entirely different (unless we were to consider the Sicilian interpretation of family law)–this is effectively what a “living will” is. It is impossible to enforce wishes of a living person.
That is why a written document is an absolute minimal necessity. It is essential a permission slip for the would-be inheritors to save the estate from being liquidated by the government and medical profession. It does not relate to the person themselves since if they were cognizant enough to experience pain, they would be cognizant enough to communicate as well in some way (pain is a signal of the voluntary nervous system as I understand it).
April 6th, 2005 at 1:59 pm
BTW, the order effectively prevented Michael from taking that one million dollar offer to relinquish custody. It had effect.
As with the other orders, they were enforced by an active police presence and arrests. State action is undeniably clear here. I could not imagine a more concrete case of state action.
Even the executioners at the federal prisons may be contractors (or the doctors injecting the poison). They need not be sworn officers of the government. The action is still the same.
April 6th, 2005 at 2:41 pm
Jaed,
I can’t read the .pdf file on my Treo. I trust that you accurately represent it. But I am fairly certain that I read *an* order (perhaps a past order) that phrased the order as permissive. I’ll have to check when I get home; I’m going from memory here.
If his most recent order was in effect a death warrant, it’s much harder to see how there is no state action.
X, you should be discussing the judge’s ruling on claim 10, not 8 and 9. Remind me what the basis of his denial was. That’s the debate we should be having: was he right in that ruling. Obviously you say no. So tell us what he said, and why he was wrong.
April 6th, 2005 at 2:48 pm
Patterico,
The wording was:
“ORDERED AND ADJUDGED that absent a stay from the appellate courts, the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18,2005″
Note that this is pretty direct–does not even mention the tube.
Now, if you didn’t know this, perhaps others are also a bit confused.
April 6th, 2005 at 2:53 pm
This was the latest order to that effect (25 Feb.). Earlier orders were permissive. Here Greer is definitely threatened.
Note that he also did not comply with other measures that would have effected a small stay while preserving the credibility of the administration of the state and federal government such as the DCF statuatory process or the Congressional supoena.
This is Greer acting in haste and overreaching as well. There is no question that he is acting outsides the bounds of the law here. Yet, his actions were unchecked.
Again, the only explanation I can offer is the possibility of corruption. That would be consistent with his other actions.
April 6th, 2005 at 2:59 pm
corruption…
What about little green men?
April 6th, 2005 at 3:36 pm
Richard,
Oh my! do you think?
After all, this is otherwise so logical–accepting campaign contributions, overlooking a legion of legal guardian requirements, believe MS’s new memories, disregarding others based on one’s own temporal mistakes, ordering an execution, rushing where for 10 years there was no reason to rush, Prohibiting feeding by mouth as experimental based on an earlier order that forbid a swallowing test, no MRI (because that would be like star trek klingon technology). Failing to recuse himself on request of litigants, …..
I could go on, but your little green men explanation, I’m sure covers it all.
April 6th, 2005 at 3:38 pm
You can’t really discuss them separately with regard to the state action doctrine. All three counts were brought under the Fourteenth Amendment, so all three are subject to the state action doctrine. Yet the idiot judge overlooked this fact completely as to Count 8, then the brief statement I mentioned above with the inapplicbale cases in Count 9. As to Count 10, all he did was refer back to his earlier nonsense about judges not being state actors. Here’s his Count 10 “analysis” on state action, in its entirety:
Uh, no. All constitutional violations, save slavery and bootlegging, require state action. If there were a legitimate state action issue, it should have been first raised with respect to Count 8, the first one alleging a constitutional violation (ironically, the same friggin’ clause of the same friggin’ amendment that is at issue in Count 10).
That’s it. The moron might just as well have written “judges aren’t state actors because I said so, although even I haven’t been consistent in saying so.”
April 6th, 2005 at 4:44 pm
So in your view, he clearly flubbed state action. And all the judges who voted against en banc review presumably missed that.
If you’re right, that would make a great article, no?
April 6th, 2005 at 5:34 pm
Yup.
Not necessarily. Did any of them discuss the state action doctrine in their opinions? Theoretically, they could have taken Judge Whittemore’s opinions, crossed out the two paragraphs about state action, and reached the same substantive result on all counts. Remember that Whittemore only invoked the state action doctrine himself on two counts – 9 and 10 – and provided alternative theories for both. Count 9, relating to cruel and unusual punishment, was invalid because Terri had never been convicted of a crime so her state-ordered killing could not be considered a punishment. Count 10, substantive due process, failed because the Schindlers’ assertion Terri had a substantive right not to be deprived of life flew in the face of the text of the 14th Amendment itself, which clearly contemplates that one can be deprived of life after (procedural) due process of law.
The biggest hole I see in Whittemore’s case, and also that of the appellate judges, is reflected in Count 8 (procedural due process), where the court took great pains to explain how the due process clause supposedly does not require states to obtain clear and convincing evidence of a patient’s intent before killing him – but didn’t say word one about what the due process clause does require in such situations. The clear implication of Whittemore’s ruling, and that if the appellate judges, is … nothing.
Actually, you’re right, they did, at least in the cases of Judges Carnes and Hull (Wilson wrote a very brief concurring opinion). We’re now back to the order we discussed before, which I falsely ascribed to Whittemore earlier in the thread. This was the opinion that cited only one case (Paisey) in a footnote to stand for the theory that the judge was not a state actor – and then in a context that semi-clearly implied what Paisey itself clearly meant: judging is indeed a state action, but not one that ordinarily deprives anyone of their rights. Upon re-reading the opinion, though, I see that they did parrot the throwaway “not a state actor” argument in the substantive due process section, citing no other authority.
April 6th, 2005 at 5:45 pm
In the run up to the bombing on Pearl Harbor, many professional military could not imagine the possibility of such audacity by the Japanese. It struck their acquired knowledge of the world as simply wrong.
Even when the bombs were falling, some admirals and generals could not believe it. They didn’t believe the crew of the USS Ward, the radar screen of the incoming planes, nor the diplomatic irregularities.
This situation is similar. Many here will not believe the simple reality of the situation as long as they are not the ones carted off on a gearny. That is not a legal problem; it is a psychological problem. The Romans had a term for it that translated to “bread and circuses”. So the Schiavo situation has been approvingly called a “media circus”. And what of the bread?
Yes, this is a clear case of “state action”. It doesn’t matter what articles are written if those who need to read the articles will not even read a one paragraph order and understand it for the plain thing that it was (even with video footage of its enforcement).
April 6th, 2005 at 7:47 pm
Of course, there is a form of government where the apparatus of the state seeks to fullfill the wishes of a living individual minus a contract. It is called a dictatorship.
And as the history of dictatorships go, it is very difficult for the apparatus of the state to be fully coherent to this “wish” even when the “wishes” are publicized broadly and enforced rigidly. Take for example Stalin’s Russia. How many apparachniks were executed for not being spot on? And this is a model for the US judicial system?
The first to get the axe are those in the way of “progress”, then come the true believers, and ultimately it devolves into the blood sport that it is as in the ase of Cambodia where anyone is fair game for any reason. By then, no one knows madness from sanity just as our society seems so unclear about the meaning of the written constitution.
April 6th, 2005 at 8:36 pm
I kind of half asses analyzed Whittemore’s state action argument in this post
The most on point case I found was with respect to the hospice being a state actor:
Willis v. University Health Servs., 993 F.2d 837, 840 (11th Cir., 1993)
Even if a hospice is not considered analogous to a hospital in this regard, the Schindlers should still have a 1983 claim under the “state compulsion” test: “The state compulsion test limits state action to instances where the government “has coerced or at least significantly encouraged the action alleged to violate the Constitution.” Willis v. University Health Servs., 993 F.2d 837, 840 (11th Cir., 1993)
Here, Judge Greer’s order required the hospice to remove the feeding tube. That the state action was a court order does not insulate it from attack under Sec 1983. It was the court order which compelled the hospice to act as it did.
Whittemore also cited to the 9th Cir case of Kirtley v. Rainey, 326 F.3d 1088, 1095 (9th Cir., 2003), in an attempt to argue that Judge Greer cannot be a state actor. However, the Court in Kirtley stated that:
the guardian is appointed by a state actor, is paid by the state, and is subject to regulation by state law
Here, that state actor appointing the guardian ad litem was Judge Greer, a state actor.
That was my stab at it…
April 6th, 2005 at 9:26 pm
Or you could just refer to this:
“ORDERED AND ADJUDGED that absent a stay from the appellate courts, the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18, 2005″
Was Greer doing this as a private citizen? What is so complicated about this?
April 6th, 2005 at 10:21 pm
I am fairly certain that I read *an* order (perhaps a past order) that phrased the order as permissive.
You’re right – the 2000 order (the first order regarding the food tube) was framed as permission to the guardian. The final order from February 2005 was directive rather than permissive. I’m not sure why the change, unless it was just that Greer was feeling impatient. (I think the tone of his successive rulings backs up that he *was* getting impatient and frustrated with the delays).
April 6th, 2005 at 10:32 pm
Or perhaps he was afraid that Schiavo would bail on the case when the money ran out of the funds from the settlement that were being redirected to Felos by Greers authority.
Or perhaps that Schiavo would take the one million dollar offer.
Or perhaps he was so contemptuous of all other parts of the state and federal government that he just wanted to make an ass of himself.
Since when is impatience a judicial virtue?
April 6th, 2005 at 10:34 pm
Note also that there is consistency with earlier judgments forbidding medical tests and the like.
The theme of the case from Greers perspective seems to be working hand in hand with Felos.
April 6th, 2005 at 11:01 pm
There is a problem with the approach of the lawyers here in addressing the issue of whether or not a judicial action is lawful. They first dive into the judge’s decisions and discuss those rather than to assess the action by definition of the law itself. The approach being used may be interesting, but it will only provide a correct answer (and no great insight) if and only if the judicial opinions as currently evolved are all consistent and complete.
There is no guarantee of this–especially not here.
So, the direct approach is best. After examining the action in relation to the written law, then one whould look to judicial precedent for clarification of interpretations, additional insight, etc. — not as a primary source of law.
In other words, this problem that we see with the courts overreaching appears to be systemic to the entire profession. Lawyers are apparently being trained in an inbred manner leading to a congenital defect in their core functions, i.e. to understand the written law as interpreted to agree most closely with the meaning of the written language.
This is all a case in point.
April 7th, 2005 at 7:59 am
Paul, that’s not entirely fair.
I am interested in analyzing the case according to first principles, but when the issue is a 14th Amendment violation, you quickly run into issues that need to be analyzed with reference to case law.
To me, looking at basic principles, I see two potential constitutional issues at stake: Terri Schiavo’s right to make decisions about her own medical treatment, and her right not to be killed against her will. These are potentially competing interests in theory, but if the facts are found according to a proper judicial process, they should not be in tension.
I have little doubt that the standards set by Florida pass constitutional muster, though I prefer my suggestion of a jury trial with a reasonable doubt standard.
Whether the standard was properly applied by the court is reviewable by the federal court under this law only if: 1) a clear and convincing standard is constitutionally required under these circumstances (not an obviously frivolous claim) and 2) the removal of the feeding tube is attributable to the state.
Analysis of these issues can’t be properly done without reference to case law. The presence of state action is something I would have thought clear until I read Whittemore’s opinion, and something I still think he may have gotten wrong. Obviously, Xrlq is certain he did. But I think any good answer has to cite cases for authority, and/or explain why cases which seem to suggest the opposite are wrong.
April 7th, 2005 at 8:41 am
Patterico,
The issue I am referring to is that one paragraph order by Greer. This doesn’t take much spelunking to determine its standing in reference to the constitution. Furthermore, I don’t know that there is much insight to be gained in this exploration of the nooks and crannies of case law since I don’t know if there is a precedent for such an execution order.
I will take the fact that this gaping abyss in constitutional due process cannot be seen for what it is–a breach of the very fabric of the consensual government, because the legal profession has decided to dive into the cave like eager children rather than to see it as the striking aberration in the landscape of jurisprudence that it is.
Step back, get some perspective.
Yes, ma’am, that does appears to be an execution order. Why, you don’t see many of those out here. Must be some sinkhole of corruption about to have opened that one up, ya’ figure?
April 7th, 2005 at 8:53 am
Patterico, please explain how Whittemore “may” have the state action wrong, as opposed to did. So far, you and I have each read one of the four cases that either he or the appellate judges cited for that proposition (you read Harvey, I read Paisey). Both cases state exactly the opposite of what these judges claim they say. The other two are available to law students for free if they want to be thorough, but do you really think there’s a chance that either of them exempts the judiciary from 90% of the Constitution? You called my prior hypothetical examples (and I presume, by implication, my subsequent ones) bizarre, but the only reason they’re bizarre is because we both know judges are state actors. If there were a real issue there, my examples would be on the table just like Whittemore’s.
Even if there were a 1% chance Whittemore was right about judges not being state actors, there would still be a 100% chance he is unclear on the concept generally. As a simple matter of logic, there is no way he can be right to have invoked the state action doctrine on Counts 9 and 10, and also be right not to have invoked it on Count 8. All three counts alleged violations of the same Constitution (and, on top of that, the same clause of the same Amendment) by the same defendants.
April 7th, 2005 at 9:18 am
Paul, I don’t like Judge Greer or his ruling any more than you do, but I don’t think his ruling shows evidence of corruption, only a combination of stupidity and a pigheaded refusal to admit he’d been wrong. Frankly, I wish corruption could have been shown, because then the Schindlers likely would have prevailed on appeal. Appellate courts generally catch stuff like that. What they don’t catch, unfortunately, are cases like this one where a judge simply gets his facts wrong.
But there is nothing wrong with discussing the state action issue, as Patterico and I are doing. It may sound a bit arcane to the average nonlawyer, but it is an important doctrine, when applied correctly. Without it, the same Establishment Clause that prohibits Congress from designating an official church for the country would also prohibit you from attending a church of your choice. It’s just this particular judge, and at least two of the appellate judges who upheld his decision, seriously misapplied the doctrine, and weren’t even consistent in their misapplication of it. I’ll give the appellate judges half a pass for taking his legal conclusions at face value at a time when everyone was under incredible time pressure to crank out their opinions in a hurry. I won’t cut Whittemore himself any slack, however, as he was the idiot who introduced this red herring into the mix to begin with, particularly since he brought it up in his second decision, after he’d had several days to mull the general issues over.
April 7th, 2005 at 10:33 am
Xrlq,
Like, no like–that is not the problem. The problem is the decisions themselves.
It seems to me that the state action issue is trivial in light of the one paragraph order. This is not a judgment or determination–it is an order that is equivalent to an execution order.
While I can appreciate how state action in the case of judgements might sometimes be a tricky issue, I thought this point would be obvious once the order was recognized for what it was–an overreach not even requested by the litigants (and for that matter Schiavo was never represented).
Once we accept the framework under which the judges attempt to explain themselves, we are already conceding some legitimacy that ought to be in question. So I would not be so eager to take that step.
Corruption is the one logical explanation for Greer’s decisions. As I said, like, no like, this is not my issue. Understanding the malfunction is the problem at hand. I start out by accepting the constitution as wholly valid and within its scope and go from there. The rest is analysis of systems.
April 7th, 2005 at 11:21 am
I am not giving anyone a pass for having to crank out legal opinions in a hurry. They put the pressure on themselves by refusing a stay. That would never happen in a death penalty case.
Paul, you and I agree that something seriously wrong happened in this case. The last order reads like a death warrant. I am interested in how what seems intuitively like a governmental action can be reasoned to be otherwise — and whether that reasoning is legally correct, whatever one may think of it morally.
April 7th, 2005 at 11:28 am
Y’all are missing one salient point: Terri Schiavo effectively died in 1990 of brain damage caused by a heart attack caused by bulimia.
The case really was about the necessity of maintaining a heartbeat in a dead person by artificial means. or lack thereof.
Please discuss without inventing new facts (hint: an MRI was done in 1990.)
April 7th, 2005 at 11:58 am
Patterico,
I agree with you that that would be interesting to know, at least so as to examine the dysfunction of the appellate courts. However, I would not be surprised to learn that the Schindler’s lawyers did not appeal that point. I’m not impressed by their competence.
Richard,
Under the law (and in fact). No. She was not brain dead. In, fact neurologists and others have testified that she was not even PVS (whatever that really means).
P.S. No MRI was ever done, that was a CT scan.
Please refer to this link to get up to speed (if you care).
April 7th, 2005 at 12:08 pm
Both factually wrong and off-topiic.
Factually wrong because whether Terri Schiavo was PVS (not brain-dead, as you characterize it) was not (supposed to be) an assumed fact in the litigation, but rather an issue to be decided. So you are just flatly wrong to say: “The case really was about the necessity of maintaining a heartbeat in a dead person by artificial means. or lack thereof.” You do here what so many people on your side of the issue do: assume an issue and debate it based on that assumption.
Off-topic because that’s not we are discussing. As such, your factually incorrect observation is as far from “salient” as it could possibly be.
April 7th, 2005 at 12:20 pm
That comment was directed at Bennett, as the context should make clear. I encourage Bennett not to turn this into yet another tired discussion of whether Schiavo’s feeding tube should have been yanked. I don’t think Xrlq wants that, and I sure as hell don’t.
April 7th, 2005 at 12:38 pm
I mention the fact that an MRI was done (as well as EEG adn CT scans) because I’ve seen the claim on so many tuber sites that it wasn’t done.
And Patterico, the court found that your girl was PVS. And the appeals court examined the record and agreed. So that’s a res judicata, dammit.
These facts having been established, we have the proper context for your concerns about state actors: the woman was brain-dead before the state got involved.
Now what was your issue with the treatment of the dead again?
April 7th, 2005 at 1:56 pm
That’s mighty impressive legal terminology, albeit coming from a guy who doesn’t know the difference between PVS and brain death.
I urge you to quit while you’re behind. There must surely be comment threads where the commenters welcome fatuous, factually incorrect, off-topic comments. Go find one of those, why dontcha.
April 7th, 2005 at 1:59 pm
I withdraw my withdrawal of my comment that you are a troll.
April 7th, 2005 at 2:26 pm
It must be painful to be the only lawyer in the country who sees the facts of this case correctly. Imagine, the entire Florida judiciary, the 11th Circuit, and the US Supreme Court (including Scalia and Thomas) is wrong, and a little old assistant DA from LA County is right.
Amazing.
April 7th, 2005 at 2:28 pm
And BTW, there’s no meaningful distinction between PVS and brain-death.
And BTW, the bulimia was well-established.
And BTW, Terri wasn’t ready to compete on American Idol before the feeding pump was turned off.
Really.
April 7th, 2005 at 4:54 pm
Dick, I’m not going to bother arguing with you on the merits, because frankly, I have better things to do than waste my time engaging a battle of wits with an unarmed person – or worse, with a five year old holding 20 toy guns who thinks he’s armed to the teeth. For your insane ramblings to make any sense whatsoever, I’d have to take some hard core mind-altering drug. I mean, seriously, how friggin’ stupid does a person have to be to think that a 1990 MRI can prove anything about brain degeneration believed to have occurred several years afterward?! It’s an MRI, not a crystal ball. The only questions, is someone who believes this crap stupider, less stupid, or equally stupid to the guy who believes that if one judge has ruled a patient PVS and another ruled that the first judge’s findings were not clearly erroneous, that must mean the ruling was absolutely, positively right? Both ideas are pretty brain-dead (or is that PVS?), but neither is quite as stupid as the idiot who visits a blog maintained by a lawyer who has publicly disagreed with the outcome of the Schiavo case, and uses that forum to lecture a different lawyer about how that second lawyer is supposedly “the only lawyer in the country” who has publicly disagreed with the outcome of the Schiavo case. Quadruply stupid, that is, when you consider that the Schindlers’ lawyers probably don’t agree with the outcome either, nor does Ann Coulter, nor do too many other lawyers to count.
Just about everything you’ve contributed to my threads, Patterico’s or Dean Esmay’s has proven to be mind-numblingly stupid, but that’s not the reason I’m commenting now. The reason I’m commenting is that not only are your statements idiotic, they also don’t have a f’n thing to do with the topic of this discussion, which is the state action doctrine. In the highly unlikely event that you have anything remotely intelligent to say on that topic (hint: it has nothing whatsoever to do with Terri Schiavo’s alleged state, her alleged deathwish, or anything else about her case in particular), feel free to post it here. If you don’t, then kindly go climb under the rock you crawled out from under. One more off-topic comment, and you will be banned without further warning. You’ve polluted these discussions enough already.
April 7th, 2005 at 5:43 pm
I’m guessing he came here from my blog, where I explicitly asked people not to bring up this sort of tired argument. (I wonder if that’s why he did it.)
Funny, too, that he mocks me for claiming that all these judges got it wrong — and Xrlq has (much more politely) gotten on my case for claiming that they got it right.
Me, I’m still trying to figure it out. This state action stuff seems too murky for someone with a day job (okay, I’m on vacation now — so I’m busy vacationing!) and no real background in the area. Give me a day or two and I bet I could figure it out, but I don’t have that kind of time.
Aren’t there any experts on this area of the law out there? Taller order: who don’t have an ideological axe to grind?
On a positive note, the first act of Siegfried was very good.
April 7th, 2005 at 5:52 pm
The essence of Xrlx’ argument seems to be this: “Dick…”
I have to admit I’m devastated by this slashing display of intellect, and humbled by the laser-like precision of this basement-dwelling insight.
I’m not a lawyer personally (and I doubt Xrlx is one, although he/she does sound like some Loyola grads I’ve known) but I read opinions from time to time. One concept I’ve gleaned from this hobby that applies here is the doctrine of “thin gruel”, a sort of argument that’s out there in the same general territory as “skating on thin ice” and “grasping at straws.”
It’s not unlikely that some small and insignificant details of one or more of the decisions and opinions that came down after 15 years of the Schiavo coma was questionable. Whether such an unsettling claim amounts to anything, even if wrong, is another question.
Is the court a “state actor” in resolving civil disputes? Not really.
Any more questions?
[Only one: did you think I was kidding about banning you? Don't bother answering: you can't.]
April 8th, 2005 at 3:05 pm
Not sure if you’ll consider this off topic or not.
The framers of the constitution did see a need for a check on the judiciary. Article II, section 2 grants the power of the executive pardon, but only in criminal matters. I think the framers understood that sometimes good law leads to bad results. Where a court sentences a person to death in a criminal proceeding, the president (or governor) has the power to completely over ride the judicial result. I doubt that the framers envisioned that a civil proceeding could result in a death sentence. My recommendation would be to extend the executive pardon to those civil cases where life or confinement are at issue.
I don’t know what would have happenned if President Bush had pardoned Terri Schiavo. I haven’t heard anyone speculate on this topic.
April 8th, 2005 at 3:25 pm
Technically, it is off topic but it’s an interesting issue nonetheless, so I’ll address it briefly. My guess is that if President Bush had pardoned Terri Schiavo, the federal courts would have ruled that his act exceeded the pardon power. Compare it to Terri’s Law, which authorized Governor Bush do execute the equivalent of a pardon, but which was held unconstitutional in 2004 on separation of powers grounds. Of course the federal courts could rule differently, but there’s nothing in the federal constitution indicating that they should, and there are also federalism issues on top of that.
But I agree that a constitutional amendment extending the executive pardon power, preferably at both the state and federal levels, to non-criminal judgments resulting in death or long-term confinement is a good idea. It shouldn’t be easier to kill or confine a person who hasn’t done anything wrong than it is to do the same to someone who has.
April 8th, 2005 at 4:13 pm
You know, when the court can execute a person under the pretense of a “civil” proceeding, there really is no good reason to have a criminal code.
For that matter, we can also redefine “punishment” as “instructive remediation”. “Freedom” can be “unfreedom” and “voting” can be “treason”.
We just need a probate judge to make the interpretations for us since we are obviously too stupid to rule ourselves.
April 9th, 2005 at 4:33 pm
While this thread appears to have died, it actually hasn’t. Jen of Mellow-Drama, a 3L at Lewis and Clark (I think) and I are continuing it here.
April 10th, 2005 at 5:19 pm
Okay. See you over there.