Althouse and Instapundit Surprised at Us?

Ann Althouse and Glenn Reynolds are surprised that conservative bloggers believe the Federal Court in Florida flouted the Schiavo statute passed by Congress. I’m included in that group, and frankly, I’m surprised that they are surprised. While I have great respect for both, they are wrong.

Here’s the main point of Ann’s argument starting with the legislation:


The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the “suit or claim” provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents’ complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no “substantial likelihood of success on the merits” on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court’s work.

Ann’s argument has a significant flaw. A trial de novo at the Federal level is a completely new action from the trials at the state level. It is not a review of the state’s record. Witnesses will be called, documents tendered, expert opinions given – perhaps some will be the same as those called at the state proceedings but some undoubtedly will not be. While Ann is correct that the claim for violation of due process would include consideration of the state level proceedings it would not by any means be exclusive to those proceedings. Indeed if the purpose of the claim is, in essence, to scrutinize the prior state proceedings with a view to determining if due process has been violated, extrinsic evidence would certainly be required. Ann’s is a circular argument which ignores the purpose of a trial de novo.

In denying temporary injunctive relief, the court did not “technically” deny a trial de novo, but denied a stay pending such a trial. Of course the court denied the stay knowing with absolute certainty based on the laws of science that Terri would be dead long before any trial could be heard, and thus practically denied the trial contrary to the clear spirit and intent of the legislation. It appears that those who agree with the court’s decision justify this on the basis described above – that a trial de novo would add nothing more than what is already on the record. But as shown above they are not the same.

Furthermore, the factors that one considers in determining whether to grant a stay – the crucial ones in this case being the “irreparable harm” and the strength of the merits of the case – are to be given the appropriate weight as the circumstances of the case so require. I can think of no case where “irreparable harm” should be more highly weighted than in the Schiavo case. This is particularily so when such concepts were largely developed with respect to the protection of property rights such as patent infringements.

One more thought. I’m surprised at the shock expressed by Ann and Glenn as if conservative bloggers were grasping at straws. Not only is the above a sound argument, but one of three judges was in agreement with this position.

UPDATE: For more substantive arguments in favor of Terri, here is Andrew McCarthy’s opinion that Terri’s rights have been violated by virtue of the fact that she is being put to death by the state on a civil burden of proof, not “beyond a reasonable doubt.” I have been arguing for some time that this is the appropriate standard in the circumstances.

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