CONSTITUTIONAL & CIVIL RIGHTS / RULE-OF-LAW / REIN IN JUDICIAL IMMUNITY / JUDICIAL ACCOUNTABILITY /


 

 

The Schiavo Precedent 2

 

HELP KEEP
VICTIMS-OF-LAW
ON THE WEB

SHOP OUR ADVERTISERS

OR CONTRIBUTE NOW

DIRECTORY

HOME

ABOUT / CONTACT

TERMS / CONDITIONS

LEGAL DISCLAIMER

JUSTICE MYTHOLOGY


News & Views

ATTORNEYS & JUDGES

ATTORNEY NEWS

ATTORNEY NEWS REVIEW

JUDICIARY NEWS

BANKRUPTCY COURTS

IMMIGRATION COURTS

JUDICIARY NEWS REVIEW

JUDICIAL ACCOUNTABILITY

JUDICIAL ACTIVISM & INACTIVISM

JUDICIAL ACTIVISM
NEWS & VIEWS

JUDGES SPEAKING OUT
FOR "WE THE PEOPLE"

PERSPECTIVES
 (Personal Observations)

U.S. SUPREME COURT

SCOTUS PG. 1

SCOTUS PG. 2

CURRENT SESSION


CRIMINAL LAW

Death Penalty

DEATH PENALTY ARCHIVES

DEATH PENALTY REPORTS

Innocents In Prison

Prison Reform


DISABILITY LAW

DISABILITY LAW

DISABILITY ARCHIVES


FAMILY LAW

Children's Rights

CHILDREN'S RIGHTS PG. 2

Family INFO  (General)

family LAW (archives)

family LAW articles
 
  Courtesy lawyers weekly

Fatherhood

Fatherhood Archives

Motherhood

MOTHERHOOD ARCHIVES


PROBATE LAW

guardianship


RELIGIOUS PERSECUTION

RELIGIOUS NEWS & VIEWS

RELIGIOUS NEWS 2006

FIRST AMENDMENT:
RELIGION & EXPRESSION


SELF-REPRESENTED
(Pro Se News)

PRO SE INFORMATION


REFORMERS

LEGAL ACTIVISTS

LEGAL ACTIVISTS Pg. 2


WHISTLEBLOWER  LAW

LEGAL & COURT BUSINESS

GOVERNMENT EMPLOYEES


INDEXES
TO SPECIAL
SECTIONS

FEDERAL COURTS INDEX

FIRST AMENDMENT RIGHTS

JUDGING THE JUDGES
INDEX & RESOURCES

STATE INDEXES

FLORIDA

NEW JERSEY

NEW YORK

SOUTH DAKOTA

PRO SE INDEX

REFORMERS INDEX

WHISTLEBLOWER INDEX


LEGAL RESEARCH

LEGAL RESEARCH
(FREE SITES
)

ALSO SEE INDIVIDUAL STATE INDEXES


REFORM GROUPS

DISABILITY ACTIVISTS

FAMILY LAW

CHILDREN

FATHERHOOD

MOTHERHOOD

LEGAL REFORM ACTIVISTS

MAJOR REFORM GROUPS

PRO SE (SELF-HELP)

PRISON REFORM

DEATH PENALTY

WRONGFUL CONVICTIONS


MEDIA LINKS


PETITIONS

PEOPLE WHO HAVE
GONE PUBLIC

 

EMAIL PRESS RELEASES


 

Victims-of-Law Open Discussion

Click here to join victimsoflaw_discuss
Click to join victimsoflaw_discuss

 

Substantive And Procedural Due Process:

A Comparison of
“An Act for the Relief of the Parents of Theresa Marie Schiavo”
with existing law under 28 U.S.C. §1343 and 42 U.S.C. §1983
 ©2005

By: Charles E. Lincoln

INTRODUCTION

Much of the discussion in the media over the past week concerns the impact of Congress’ private bill regarding Terri Schiavo on Federal-State relations. Congress had a choice between granting Terri special procedural due process rights (which is what they did) and granting her substantive due process rights (which they expressly chose NOT to do---it says so in the statute). See Terri Schiavo bill.

Procedural due process (federal review of state cases) is what the Federal Courts (without express Supreme Court sanction or approval) have been curtailing through my favorite paired boogeymen "Rooker-Feldman" jurisdiction (Rooker v. Fidelity Trust) and "Younger v. Harris" abstention---against people with causes like Charlie's which do raise well-established substantive rights (e.g. Freedom of Speech, the right to the care and education of one's own children).

The whole problem with Schiavo is that there ARE no well-defined substantive due process rights that apply to an unconscious person's right to live (or be kept alive) anywhere in the bill of rights, the Fourteenth Amendment, or any of the Supreme Court's cases. It's a recent problem of technological origin and the courts haven't caught up.

Both the Florida and 11th Circuit courts agreed only that there is no precedent in John Ashcroft’s (now very old) "Cruzan" or any of the relevant cases that establish or identify any affirmative rights which have been violated in Terri's case.

Meanwhile, Congress wanted to give the impression of doing something while in fact doing nothing, so Congress granted Schiavo's parents an extra procedural "bite at the apple"---by re-enacting statutes that already existed but which the Courts have essentially defined out of existence.

So the next question is: What does it mean that Congress knows that the existing Civil Rights statutes enacted by Congress are not being implemented or enforced by the Courts, and that it takes a special bill to get full, already statutorily authorized review of even a high profile case where no known substantive rights can be identified? Does it mean that Congress tacitly approves the lower Court treatment of Civil Rights' statutes? Or does it mean that Congress was disturbed by the notion that the Courts are not even giving procedural due process a chance, and that Congressional displeasure with the status quo of civil rights jurisprudence is reflected in the enactment of the special bill in the Schiavo case?

If the latter is true, how can litigants use the case to support a roll-back in the draconian anti-civil rights "shotgun blast" mis-application of "Rooker-Feldman" and "Younger v. Harris?"

 

THE STATE OF THE LAW BEFORE THE SCHIAVO BILL

Either Congress has completely forgotten the civil rights laws already on the books (and chose to re-enact statutes with uncanny similarities to those already in existence), or else Congress recognizes that the Federal Courts have all but stopped enforcing the civil rights laws as a matter of “anti-civil rights judicial activism” under the rubrics of Rooker-Feldman or Younger v. Harris and accordingly enacted a “one time private exemption” to provide another procedural “bite at the apple” for a politically popular cause.

There is simply no getting around the fact that the Schiavo bill merely restates the basic enabling acts for civil rights litigation under the Constitution, and adds nothing to those laws. Too many people are blaming the state and federal court judges for doing nothing. But the truth is that Terri Schiavo and her parents have spent more time in and received more judicial attention from both state and federal courts than 99.99% of all death row inmates. If there had been, as so many supporters of Terri Schiavo and her parents maintain, any misconduct or conduct in excess of or in variance from the Florida or Federal Constitutions on the part of Florida Circuit Judge Greer, 42 U.S.C. §1983 as amended in 1996 already provided both a federal forum an express remedy IDENTICAL if not stronger than the Schiavo “private bill.”

There has been no denial of PROCEDURAL DUE PROCESS in the Schiavo case—as Judge Frank Easterbrook of the 7th Circuit would undoubtedly say, “Terri Schiavo and her parents have received ‘oodles of process’” (cf.  Szabo v. Digby, 1987). The problem for Terri and her parents is a massive default of either judicially or congressionally determined SUBSTANTIVE DUE PROCESS rights on the side of keeping Terri Schiavo alive—and on this point both the Federal and State Courts have quite simply concurred from the Middle District of Florida in Tampa through the 11th Circuit en banc.

One way to think of this is that the generally anti-Plaintiff, anti-civil litigation Republican Congress granted a one-time exemption to Terri Schiavo’s parents to file a frivolous lawsuit (lacking in any possible allegation of violation of any express substantively guaranteed rights) without granting to either Terri or her parents one single substantive right which would make that lawsuit less frivolous. In short, Congress’ posturing was nothing but a cruel and meaningless hoax.

Section 1 of the Schiavo bill (signed into law on March 21, 2005) invested the U.S. District Court for the Middle District of Florida with

“jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Shiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States.....”.

Title 28 U.S.C. §1343(a)(3)-(4) already provided that:

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:  to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”

Except and unless Congress forgot about the existence of 28 U.S.C. §1343(a)(3)-(4), what did Congress add by enacting Section 1 of the Schiavo bill? Could it be that Congress knew that the courts were systematically refusing to exercise its pre-existing jurisdiction to hear civil rights cases authorized by 28 U.S.C. §1343(a)? So, was Congress making a one-time exception to Rooker-Feldman and Younger v. Harris abstention doctrines, or has the judicial refusal to enforce the civil rights laws simply become so ingrained and routine that Congress completely forgot about the express language of pre-existing statutes?

Section 2 of the Schiavo bill makes it clear that only the parents of Terri Schiavo have standing under this bill and specifically authorizes suit against “identical parties” to the state court litigation, which normally would present a problem under Rooker-Feldman (if the state court cases were final), and Section 2 also specifically exempts Schiavo litigants from any requirement of exhaustion of state court remedies and liberates the federal court from any requirement to give res judicata or any other issue preclusive effect to any previous state court decisions and specifically provides that “The District Court shall entertain and determine the suit without any delay or abstention in favor of State Court proceedings....” 

Obviously, Congress was aware of both judge-made Younger v. Harris and Rooker-Feldman constraints on civil rights litigation in enacting the Schiavo bill, but was  unaware of Zinermon v. Burch, 494 U.S. 108, 124-5, 110 S.Ct. 975, 982-3, 108 L.Ed.2d 100 (1990) and the courts’ statements in the Zinermon opinion that exhaustion of state court remedies is not required to institute suit under 42 U.S.C. §1983, (it should be noted, however that, the ACLU cited Zinermon on the definition of due process in its amicus brief in Schiavo to the U.S. Supreme Court).

Section 3 of the Schiavo bill provides that:

“After a determination on the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States.....”

Again, one must wonder how this differs from the pre-existing language of 42 U.S.C. §1983, “Civil Action for Deprivation of rights” and whether Congress has forgotten the status of existing US law:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable....

As always, 42 U.S.C. §1983 must be read together with its companion “Proceedings in vindication of civil rights” 42 U.S.C. §1988(b):

In any action or proceeding to enforce a provision....of this title.....the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

It is reasonable to infer that in enacting the Schiavo bill, Congress may have intended an act of meaningless legal, purely symbolic, import.  It is equally plausible that Congress completely understood that the substantive due process question of whether Terri Schiavo had any affirmative right to stay alive against the will of her husband and legal guardian was simply a political potato “much too hot to handle” but that the buck could be passed to the Courts by re-authorizing “procedural due process” by giving another “notice opportunity” for Federal review of state court litigation despite the Federal courts recent history of “anti-review” procedural jurisprudence.

If Congress had chosen to reaffirm the civil rights enabling statutes which are “on the books” by making affirmative reference to 28 U.S.C. §1343(a) and 42 U.S.C. §1983, Congress could have reinvigorated civil rights litigation in federal courts against the stain of Rooker-Feldman and Younger v. Harris abstention and refusal jurisprudence. Alternatively, Congress could have taken the more meaningful step (from the standpoint of Terri Schiavo and her parents, anyhow) of enacting an affirmative substantive right to nourishment to persons who are unconscious and have never executed a living will, “DNR”, or “no extreme measures” directive.   Congress rejected these latter, “substantive due process” alternatives, however, in sections 5, 6, 7, and 8 of the Schiavo Act.

So the question remains—what does it mean that Congress enacted a “special bill” for Terri Schiavo which gave her parents another “procedural bite at the apple” but no substantive due process rights to life or liberty and expressly did not change the general law regarding substantive rights, assisted suicides, or patient self-determination?

It may mean that Congress was tacitly admitting that the Federal Courts have gone so far in their 1980s-1990s “anti-civil rights activism” of abjuring the originally intended mandate of the civil rights acts under Rooker-Feldman and Younger v. Harris that there is, in effect, no viable outlet under existing law to obtain Federal Courts’ review over state-court actions, except to re-enact the very laws which are already on the books.

Charles E. Lincoln  lives in Lago Vista, Texas.  After his B.A. at Tulane in New Orleans (1980), he received a Ph.D. from Harvard University in 1990 and a J.D. from the University of Chicago in 1992.  He clerked for U.S. District Court Kenneth L. Ryskamp in Palm Beach, Florida, in 1992-1993 and before that was a judicial extern for U.S. Circuit Judge Stephen Reinhardt, 9th Circuit Court of Appeals, Los Angeles, in 1988-9."

 

Win Without a Lawyer
Step-by-step tutorials show how.
Legal self-help that works!

Written by an attorney!

Order from
Jurisdictionary today!



WILL GET YOU,
a relative or a friend!

“IT”
is at the heart of the most serious societal problems in America.

“IT”
touches nearly all of our families.

“IT”
bankrupts and/or imprisons opponents.

“IT”
mercilessly propels our children to violence, suicide & anti-social behavior.

“IT”
snares a million of our children a year.

“IT”
is a multi-billion dollar industry ravaging our families, destroying our country, & threatening our society.

“IT” IS
the DIVORCE INDUSTRY &

“IT”
could get you, a relative, or a friend next!

ACT NOW!
Get Involved!

Support
Family Law Reform
before IT is too late!


A Matter of Justice
Coalition, Org.

P.O. Box 1209,
Dahlgren, VA 22448-1209

E-mail: president@amatterofjustice.org
Web: www.amatterofjustice.org
 
AD DESIGN BY DOTTO
 

 
 

 

Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.
--Patrick Henry--

 

Due to server's technical difficulties the numbering restarted on 6/19/06
As of 6/19/06 you are visitor number

Hit Counter

INAUGURATED ON: April 5, 2005
Updated: 11/19/2009