[BULK] - RE: DeShaney and Schiavo
7barksda at jmls.edu
Fri Oct 7 15:43:16 PDT 2005
As I've been trying to figure this out, after reading Michael's post and the 11th Circuit's approach, I think maybe the difference rests on the "action" part of state action, rather than the "state" part. Clearly the judge is the state, but was the action of terminating Terri Schiavo's life the action of the judge or the action of Michael Schiavo, who simply used the judge as a means of doing this. That is, does the fact that a private party uses the state as a means of achieving a goal, make the private party's action state action?
For example, if you take the race disco example - assume that a private party neighbor A, who is a racist, sues members of another race who move into his neighborhood as a means of harassing them because of their race. Neighbor A's actions are racially discriminatory, and likely illlegal under statutory law, but they are not unconstitutional because there is no state action. The judge's decision to hear the law suit is state action, but is the racial discrimination by the private party state action just because the state heard the lawsuit. Answer no - the racial discrimination by the private party does not become state action just because a state judge has a role in carrying out the racially discriminatory plan. This situation was basically the Paisey precedent cited by the 11th Circuit - plaintiff's actions would be unconstitutional if done by the state, but do not become state action, just because the plaintiff sues as a means of achieving his goals.
By analogy in Schiavo, the position the 11th Circuit took, apparently, was that the judge similarly was just a tool (i.e. a neutral fact finder) used by Michael Schiavo to make his decision to terminate Terri's life. That is the judge did not decide whether Terri should live or die -that was the husband's choice. Rather, the Judge simply decided the factual question of whether Terri would have wanted to live or die. That simple role - fact finding - was not enough to impute the decision to terminate Terri's life to the judge, as opposed to the husband. . The judge simply performed his ministerial role under the statute (just like the judge who hears a case brought for racially discriminatory motives.)
Thus, under this view, any constitutional argument in this case, I guess,(other than procedural due process challenges to the judge's actual factfinding) , would have to rest on the constitutionality of the statute that permitted her life to be terminated in this manner.
I'm not sure I'm persuaded that making that factual finding here, knowing that the statute required her wishes to be followed (as I understand it) is such a ministerial role. But the argument is, if the judge's role under the statute is basically ministerial in this sense, the terminating life decision wasn't the judge's - it was Michael's.
Of course, the key question is whether the judge's role under the statute is this ministerial. And, as I take it, Michael's point was - yes it is.
Samuel Bagenstos [mailto:srbagenstos at wulaw.wustl.edu]
Sent: Fri 10/7/2005 4:32 PM
To: Barksdale, Yvette; masinter at nova.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: [BULK] - RE: DeShaney and Schiavo
The thing I've never understood about this whole aspect of the Schiavo case is why people think the notion of state action, as opposed to the content of the due process right, does any work here. Of course Judge Greer was a state actor when (while sitting as a state judge deciding a case according to a state statute) he made his decision that Theresa Schiavo would have wanted the ANH discontinued. What if he had denied Michael Schiavo or the Schindlers any right to be heard? Surely he'd have denied due process. What if he had made his decision on racially discriminatory grounds (as in Palmore v. Sidoti)? Surely he'd have denied equal protection. He didn't deny due process here, for reasons Michael suggests, but that's because he provided all the process that was due -- not because the due process clause didn't apply to him in his capacity as adjudicator.
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
Personal Web Page: http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/
>>> Michael MASINTER <masinter at nova.edu> 10/7/2005 4:16 PM >>>
I apologize for the slow response. I should note that I worked on the
Schiavo litigation in my role with the Florida ACLU throughout the
challenge to "Terri's Law" and in the subsequent federal proceedings under
the federal statute.
I think the eleventh circuit understood well how Florida law operates, and
in particular the role the judge assumed under the statute. Though it is
true that the judge formally exercised powers that otherwise belonged to
Michael Schiavo, he did so only because Michael asked him to exercise that
power to resolve the contrary position taken by Ms. Schiavo's parents.
The proceedings before Judge Greer were understood by both Michael Schiavo
and the parents in substance to be Michael Schiavo vs. The Schindlers with
the question being whether Ms. Schiavo had expressed in sufficiently clear
terms her wishes to have proven by clear and convincing evidence that she
would have chosen to withdraw the PEG tube. In other words, by acting as
the surrogate for Ms. Schiavo, the judge was resolving a dispute between
two other potential surrogates -- Michael and the parents -- and in that
sense was doing exactly what he would have done had Michael sought
permission to withdraw the tube over the objections of the parents.
Here is how the Schindlers described the state proceedings in their
initial brief to the Eleventh Circuit:
"On May 11, 1998, Michael Schiavo petitioned the Circuit Court for
Pinellas County, Florida, Sixth Judicial Circuit, Probate Division, for
authority to discontinue Terri's "artificial life support," which
consisted only of assisted feeding through a PEG (percutaneous endoscopic
gastronomy) tube. The petition was filed as an adversary action, with
Petitioners herein, Terri's parents, having been served with notice of the
page 8 (numbered page 2). The somewhat incoherent argument that follows
seemed to rest on the premise that the judge deprived Ms. Schiavo of due
process by failing to appoint an independent guardian ad litem, though it
is not well phrased. The petition for certiorari and application for a
stay does not elaborate much of an argument;
and the second Schindler brief to the Eleventh Circuit is little more than
a gutteral scream.
Our brief was thorough, and described the guardianship proceedings in the
state courts, as did the several district court of appeal opinions and the
Florida Supreme Court opinion. Our Supreme Court brief is available at
I agree that a very different state action question would arise if the
statute conferred carte blanche power on the judge to act as surrogate;
then he clearly would more than an adjudicator. But from Browning to the
statute, the substance of the Florida process has never turned on whether
the surrogate makes the decision subject to potential challenge or the
surrogate asks the judge to make the decision in anticipation of known
As an aside, I expected the Schindlers to litigate their case quite
differently under the federal legislation; to this day I do not understand
either why counsel for the Schindlers made the claims they made or why
they omitted claims we expected them to make, though I suspect that their
visceral aversion to Roe v. Wade had something to do with those decisions.
But we certainly expected a substantive due process claim, and were
stunned by the focus on procedural due process since it foreclosed any
role for an evidentiary proceeding and made the denial of a preliminary
injunction much easier than it otherwise would have been.
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 Thu, 6 Oct 2005, Barksdale, Yvette wrote:
> 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)
> 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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