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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." |
