[BULK] - RE: DeShaney and Schiavo
masinter at nova.edu
Mon Oct 10 06:51:30 PDT 2005
Much of Florida's law respecting the power of surrogate decisionmakers and
the judicial procedures associated with the exercise of that power trace
to In re Browning, 568 So. 2d 4 (Fla. 1990). Browning rests on Fla.
Const. Article One, Section 23's textual guarantee of privacy as well as
on the due process clause of the fourteenth amendment.
Browning describes the role of the surrogate decisionmaker:
"[I]t is important for the surrogate decisionmaker to fully appreciate
that he or she makes the decision which the patient would personally
choose. In this state, we have adopted a concept of "substituted
judgment." [In re Guardianship of Barry, 445 So.2d 365, 370-71 (Fla. 2d
DCA 1984) ]. One does not exercise another's right of self-determination
or fulfill that person's right of privacy by making a decision which the
state, the family, or public opinion would prefer. The surrogate
decisionmaker must be confident that he or she can and is voicing the
Id. at 13.
Recognizing the potential for disagreement with a surrogate's exercise of
substituted judgment, Browning stated:
"We emphasize, as did the district court, that courts are always open to
adjudicate legitimate questions pertaining to the written or oral
instructions. First, the surrogate or proxy may choose to present
the question to the court for resolution. Second, interested parties may
challenge the decision of the proxy or surrogate."
Id. at 16 (footnote omitted).
Finally, In re Browning anticipated much of what transpired in the state
court litigation in Schiavo:
"Although a surrogate may rely on oral statements made by the incompetent,
while competent, to exercise the incompetent's wishes to forego
life-sustaining treatment, the presumption of clear and convincing
evidence that attaches to a written declaration does not attach to purely
oral declarations. Oral evidence, considered alone, may constitute clear
and convincing evidence. However, the surrogate would bear the burden of
proof if a decision based on purely oral evidence is challenged.
Because the only issue before the court is a determination of the
patient's wishes, challenges generally would be limited to that issue. For
example, there may be challenges to claims that the declaration was not
executed knowingly, willingly, and without undue influence; that the
patient had changed his or her mind after executing the declaration; that
the declaration was ambiguous; that the conditions or limitations
contained in the declaration were not satisfied; that the surrogate or
proxy was the one actually designated; and, of course, that there was a
reasonable probability that the patient would regain competency. When the
only evidence of intent is an oral declaration, the accuracy and
reliability of the declarant's oral expression of intent also may be
Id. at 16.
Browning makes clear the reason for the Eleventh Circuit's narrow view of
state action; the patient speaks through the surrogate, exercising her own
right to privacy. The state has not clothed anyone with the power to
decide what is best for the patient, but has simply created procedures to
ensure what, if any wishes she expressed, and if satisfied that those
wishes were sufficiently clear, to ensure that her wishes govern.
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 Sun, 9 Oct 2005, Janet Alexander wrote:
> It seemed to me when I read the cases last spring that the Florida law was
> a bit more complicated. As I recall, the "surrogate decision maker"
> doctrine is not contained in the language of the statute. It is in caselaw
> from an intermediate appellate court. It has not been explicitly adopted
> by the Florida Supreme Court. At any rate, it is difficult to distinguish
> this "surrogate decision maker" function from the usual function of a judge
> in deciding a dispute between the guardian (Michael Schiavo) and other
> interested persons (the Schindlers) over what Terri Schiavo's wishes were
> -- an issue that was necessary to the decision whether an order should be
> entered authorizing the removal of the feeding tube.
> Janet Alexander
> At 02:16 PM 10/6/2005 -0500, 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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> Janet Cooper Alexander
> Frederick I. Richman Professor of Law
> Stanford Law School
> Stanford CA 94301-8610
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