[BULK] - RE: DeShaney and Schiavo

Barksdale, Yvette 7barksda at jmls.edu
Thu Oct 6 12:16:45 PDT 2005

Hi Michael:
Are you sure that the 11th Circuit clearly understood  that Judge Greer's role in the Florida statutory scheme (that is, as actually making the factual finidng that Terri Schiavo would have wanted to remove the tube)?  I looked at the two 11th circuit court opinions on the state action issue, and  they appeared to analyze only whether Judge Greer's 2005 order requiring removal of the tube would turn what otherwise was a private decision into state action, merely because the private decision was enforced by a judge. (As in, would a private tort become state action merely because it was enforced in Court by a state judge  - no.) 
For example, most of the 11th Circuit's state action discussion addressed whether Michael was a state actor simply because he used the Courts to adjudicate the dispute. (No, said the Courts).   The explicit discussion of whether Judge Greer was a state actor was brief and in a footnote, See, 403 F.3d 1289, 1293, fn2 (11th Cir. 2005). There the 11th Circuit did conclude that  Greer wasn't a state actor just because he was a judge hearing the suit between private parties, citing the Pasey case you refer to See Paisey v. Vitale, 807 F.2d 889, 893-94 (11th Cir.1986) <http://web2.westlaw.com/find/default.wl?DB=350&SerialNum=1986163568&FindType=Y&ReferencePositionType=S&ReferencePosition=893&AP=&mt=LawSchool&fn=_top&sv=Split&utid=%7b96B472BE-7BC6-45BF-B08F-B274700912EF%7d&vr=2.0&rs=WLW5.09> .   
However, Judge Greer's role here was considerably more substantial than that of the judge in Paisey. The Paisey case involved a claim that a state judge was a state actor under Title VI because she refused to dismiss a private lawsuit the federal civil rights office had found retaliatory. There the Court held essentially, that the judge does not become  a state actor subject to federal civil rights laws merely because she hears lawsuits brought by private parties.  (Paisey also distinguished Shelley on the ground that the judge had simply agreed to hear the retaliatory lawsuit, and had not yet rendered a decision.)
In contrast, under Florida law - Judge Greer, in his initial role as a surrogate decisionmaker for Michael Schiavo, was more than simply a neutral arbiter of private claims. Instead, Greer, under the statute, was the actual decisionmaker as to what Terri Schiavo's treatment would be under the statute.  Here, Greer was more than an adjudicator - Greer exercised the rights that otherwise would have been the husband's under the statute. 
Do you know if the 11th Circuit heard argument on this precise issue (what was the role of the Florida judge, acting essentially as surrogate decisionmaker, under the Florida statutory scheme) - or did it simply assume that the judge's role was the more traditional one of adjudicating a private dispute? 

From: Michael MASINTER [mailto:masinter at nova.edu]
Sent: Thu 10/6/2005 10:16 AM
To: Barksdale, Yvette
Cc: John Parry; conlawprof at lists.ucla.edu
Subject: [BULK] - RE: DeShaney and Schiavo

Schiavo presented complex state action questions; in addition, the
Schindlers refrained from presenting a substantive due process claim in
the federal court proceedings, choosing to rely instead on procedural due
process claims along with various other constitutional and statutory
claims.  In refusing for a second time to grant emergency relief in
Schiavo, The Eleventh Circuit held that the state court judge was not a
state actor acting for Ms. Schiavo; it stated:

"Plaintiffs argue that Judge Greer is a state actor simply because he is a
state judge. That does not follow. See Paisey v. Vitale, 807 F.2d 889,
89394 (11th Cir. 1986) (Obviously the mere fact that Judge Vitale is named
as a defendant does not create the requisite state involvement, because
[p]roviding a neutral forum for adjudication is an essentially neutral

(note 2, page 7).

Though that conclusion is contestable, it rests upon the understanding of
both the Florida and federal courts of how the Florida statutory scheme
operated; under that scheme Michael Schiavo, Ms. Schiavo's guardian and
proxy, was empowered to make the decision to withdraw the PEG tube
himself, or, in the face of a dispute from other family members over his
judgment respecting her wishes, to submit the dispute to the state court
for resolution in an adversarial proceeding between the disputants. See In
re Guardianship of Browning, 568 So. 2d 4, 16 (Fla. 1990).  Judge
Whittemore explained in his order denying emergency relief:

"As the Florida Second District Court of Appeal explained, where two
"suitable surrogate decision-maker[s] . . .could not agree on the proper
decision, ..." the guardian may invoke "the trial court's jurisdiction to
allow the trial court to serve as the surrogate decision-maker." In re
Guardianship of Schiavo, 780 So. 2d 176, 178 (Fla. Dist. Ct. App. 2001)
("Schiavo I"). Pursuant to Florida law, therefore, Judge Greer, as the
presiding judge, had a statutory obligation to resolve the competing
contentions between Michael Schiavo and Plaintiffs. Fla. Stat.

(appendix, page 27).

Seen in those terms, Judge Greer did not act for the state in withdrawing
the PEG tube, but rather acted for the state in providing a neutral forum
for the resolution of a private dispute over whether to withdraw the PEG
tube.  In that sense, the due process clause required the state to provide
a structurally neutral, unbiased forum; if in the particular case the
judge failed to act in a neutral and unbiased manner, the opportunity to
appeal provided all the process that was due.  Given the extensive history
of appeals and postjudgment proceedings under state law, the procedural
due process claim was doomed (see below).

Although the plaintiffs refrained from asserting a substantive due process
claim, the court of appeals nevertheless relied on DeShaney and Collins
v. City of Harker Heights in its second order denying emergency relief to
address any argument that the procedural due process claim really was a
substantive due process claim:

"Count Ten claims that the Fourteenth Amendment Due Process Clause is
violated when any person is deprived of nutrition and hydration against
her wishes. To support this proposition, plaintiffs again rely on Cruzan,
the narrow holding of which we have already discussed at length. To the
extent they claim a right to procedural due process -- and the
supplemental motion in support of this count that they filed in the
district court indicates that is their specific claim -- it has been
afforded in abundance. As Floridas Second District Court of Appeal
observed, Not only has Mrs. Schiavos case been given due process, but few,
if any, similar cases have ever been afforded this heightened level of
process. In re Guardianship of Schiavo, ___ So. 2d ___, 2005 WL 600377, at
*3 (Fla. 2d DCA Mar. 16, 2005); id. at *5 n.1 (listing twenty-one
different proceedings in the case).

To the extent plaintiffs claim a substantive due process right, there is
no authority to support their position. We are mindful that the Supreme
Court has described itself as having always been reluctant to expand the
concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended. Collins
v. City of Harker Heights, Texas, 503 U.S. 115, 125, 112 S. Ct. 1061, 1069
(1992). As a result, [t]he doctrine of judicial self-restraint requires us
to exercise the utmost care whenever we are asked to break new ground in
this field. Id. The Court has specifically held that the substantive due
process component of the Due Process Clause does not require a state to
protect its citizens against injury by non-state actors. DeShaney v.
Winnebago County Dept of Social Serv., 489 U.S. 189, 195, 109 S.Ct. 998,
1003 (1989) ([N]othing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of its
citizens against invasion by private actors.); accord Lovins v. Lee, 53
F.3d 1208, 1209 (11th Cir. 1995) (no general substantive due process right
to be protected against criminals even when they were wrongfully
released). As we have already explained, the defendants are not state
actors for present purposes."

pages 13-14.

In the en banc proceedings in the Eleventh Circuit, a concurrrence by
Judge Carnes and a dissent by Judge Tjoflat addressed the question of
whether emergency relief was required to preserve for litigation the
question of whether 1) the due process clause required the state court
judge to have made his decision based on clear and convincing evidence
(the standard independently prescribed by Florida law) and 2) whether the
evidence was legally sufficient to suport a clear and convincing finding.
pages 21-23 and 24-27; both treated the question as a procedural due
process claim.

Michael R. Masinter                     3305 College Avenue
Professor of Law                        Fort Lauderdale, FL 33314
Nova Southeastern University            (954) 262-6151 (voice)
Shepard Broad Law Center                (954) 262-3835 (fax)
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Wed, 5 Oct 2005, Barksdale, Yvette wrote:

> One difference is that in the Schiavo case the state judge, not the
> husband, made the factual finding ,after a hearing, that Terri Schiavo
> would have decided to terminate the life support in this circumstance. 
> Under Florida law, the husband, who otherwise had the statutory duty
> to make this determination, could ask a judge to do it for him. 
> Michael Schiavo did - so the state judge made the decision here.
> Thus, in Schiavo, you clearly have state action.
>  In contrast, the DeShaney argued that the state negligently refused
> to intervene to stop DeShaney's father from harming him.  But, the
> DeShaney Court decided that there is no positive constitutional right
> to state protection from harm by others (except in limited
> circumstances not present there - such as persons physically in state
> custody).
> DeShaney  thus was not applicable to the Schaivo case.
> yb
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu on behalf of John Parry
> Sent: Wed 10/5/2005 3:45 PM
> To: conlawprof at lists.ucla.edu
> Subject: DeShaney and Schiavo
> Apologies for not talking about the nomination.
> There may be a quick answer to this question.  What is the difference between Joshua DeShaney and Terri Schiavo with respect to the due process clause.  Put differently, if DeShaney had come out the other way, could Terri Schaivo's parents have brought a section 1983 action against state officials for depriving her of her life/liberty "by failing to intervene to protect [her] against a risk of violence . . . of which they knew or should have known"?
> More pointedly, if there is little difference, must opponents of the parents' efforts to stop her death also accept DeShaney as rightly decided?
> Is it enough to say that the difference is that Schiavo "wanted" to die?  If so, then assume there is no proof of that fact.  If DeShaney is wrongly decided, should the impoverished family of a person who is dying and has no insurance be able to sue the state for failing to intervene and prevent the death?
> ********************************************
> John T. Parry
> Visiting Professor, Lewis & Clark Law School
> Associate Professor, University of Pittsburgh School of Law
> 503-768-6888
> parry at lclark.edu
> *********************************************
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