Balkinization: Schiavo -- CTA11 Affirmance and Amended Complaint

Comments:

CriticalObserver: "We also agree that one usually doesn't get a jury trial when in federal court on a TRO. But then, the statute that conferred jurisdiction mandated a "de novo" review. Full trial. As Judge Wilson made clear in his dissent, that means the Schindlers had a right to a jury trial, as Congress intended."

joe shmo: I know of no law or case that says “de novo review” mandates a jury trial. Nor did Congress say so in this law. The phrase “de novo review” is used almost exclusively in the context of an appellate court, which does not involve a jury trial. It means the court can examine factual findings and review conclusions of law based entirely on the evidence that is already on the record. Nor do I see where Judge Wilson’s dissent says that de novo review requires a trial.

This seems to be the main source of disconnect between the sides. Although I've never come across the exact phrase, it appears that 'de novo trial' is indeed a term of art as well, and distinct from 'de novo review'.

The DC Circuit (J. ROBINSON) said in NOW, Washington, D.C. Chapter v. Social Sec. Admin. of Dep't of Health & Human Services, 237 U.S. App. D.C. 118 (D.C. Cir., 1984). "When I speak of "de novo review," I refer to the distinction between a de novo trial, where the case is tried a second time and the record is made up in the district court, and a court's review of findings of an administrative body, where the record is solely that of the administrative body.'" Local 777, Democratic Union Org. Comm. v. N.L.R.B., 195 U.S. App. D.C. 280, 310, 603 F.2d 862, 892 (1978), quoting Globe-Union, Inc. v. Chicago Tel. Supply Co., 103 F.2d 722, 728, 41 U.S.P.Q. (BNA) 366 (7th Cir. 1939).

The Act does not specify which use of de novo it intended:

"In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

One inference is that as the jurisdiction has been given to the district court, it could only mean 'de novo trial' because district courts are trial courts, not appellate courts.

On the other hand, the district court is basically performing an appellate function, as the matter has already been adjudicated. Also, the term 'de novo' is most commonly used in the appellate context - indeed, I've never even heard the term de novo trial before I just now researched it to see if there was a distinction (but I'm only a law student - it may indeed be more common than I know).

Because the term has a commonly understood meaning, the legislature voting on it most likely attached that meaning as opposed to the more arcane one. Arguing for this is the fact that the bill represented a compromise - comments from the House floor support this ('It merely confers jurisdiction; that's all' - to paraphrase numerous bill supporters). In other words, congressional intent has conveniently shifted from 'merely jurisdictional' while they were selling the bill to 'retrial' after it became law. It would be interesting to hear from the democrats who supported the bill as to what they thought it meant, as we already know what DeLay et. al. think 'de novo' meant. I don't believe the bill would have garnered as many votes if democrats thought that there would be an entire retrial from scratch.

This interpretation favored by DeLay and the DOJ (and the dissent in the 11th Cir.), of course, might raise all sorts of other constitutional questions, as Terri Schiavo's constitutional rights (as Defendant) become that much more trampled upon.

Also, as Joe Shmo pointed out elsewhere, the district court was constrained to the determine whether the new claims by petitioners had a likelihood of success, and those claims were each constitutionally based - entirely unlike the state claims that began this dispute. If the petitioner's wanted the case retried as the case first existed, it should have brought up the state claims, and simultaneously argue that no federal question was necessary because it was bestowed by Congress. In other words, force the district court to treat it like a diversity case. If this is what Congress intended, the petitioner's pleadings do not honestly reflect that understanding.

Because the new claims are constitutional in nature, 'retrying the case' implies a whole new ballgame. An entirely different fact-finding mission would be necessary and because so much of it revolves around Judge Greer's involvement, one that opens up a whole new can of worms. It's not hard to conclude that the DeLay/DOJ/Dissent interpretation of the statute would add years to this litigation.

And again, this brings you back to the bill's passage. Would they have gotten the votes if the voters knew that the bill intended to retry the entire matter from scratch?

# posted by

scott pilutik : 5:51 PM

[[[Nor do I see where Judge Wilson’s dissent says that de novo review requires a trial.]]]

Then you are blind as well as dumb. His entire reading of the plain language of the statute is an argument for heeding Congressional intent, granting an injunction and proceeding to full trial.

Wilson's dissent relies almost entirely on the All Writs Act argument proposed by the DOJ. Wilson says nothing about a 'full trial': "[failing to issue an injunction] would thwart Congress’s clearly expressed command that Plaintiffs’ claims be given de novo review by a federal court." So only in the context of an injunction does Wilson raise the matter of the standard of review. That's a far cry from advocating a 'full trial'. The district court has yet to find on the merits of the new constitutional claims, but just because they filed claims doesn't mean they won't lose on summary judgment even (which would preclude a lengthy trial). De novo review does not mean retrial from scratch, no matter how you much you want it to be. And even if Congress's intent was to grant a retrial from scratch, the parties remain constrained to the rules of the federal judicial process, where the relative claims are weighed against existing law. What happened to the claims by numerous congresspersons that this law merely conferred jurisdiction? De novo review simply set the deference standard by which the district court would consider the claims.

[[["Does this case even exist? What is the citation?"
494 U.S. 872
"In what court was it decided? What is the name of the judge who penned it?"
U.S. Supreme Court. Some guy named “Nino”.
” Quote from it.”
"The Court today extracts from our long history of free exercise precedents the single categorical rule that if prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."]]]

Smith, quite obviously, does NOT apply. Smith involved a general CRIMINAL law that prohibited peyote use and possession, rendering it a felony, and Indians who used it religiously claimed that the criminal prohibition infringed on their free exercise of religion, and so sued to have the law invalidated as against anyone in society using peyote, even those not using it religiously. Here I quote:

"Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now."

Terry Schiavo was not engaging in any prohibited criminal conduct that involved religious practice. She was not engaging in any prohibited conduct. She wasn't a criminal. The argument is that she wasn't allowed to see her priest and her right to life was taken away from her without an adjudication done rationally because of how a judge bent state law to further his own pro-euthanasia agenda.

Smith does apply, as any consittutional law student can tell you, to any case under the Free Exercise clause. To give you an example of the broad application of Smith, realize that Congress enacted the Religious Freedom Restoration Act (RFRA) in order to overturn Smith's generally applicable vs. targeted law test and replace it with a substantial burdening test. RFRA prohibited the govt from "substantially burdening" a person's exercise of religion unless the govt can demonstrate that the burden is 1) in furtherance of a compelling govt interest; and 2) the least restrictive means of furthering that interest.

In City of Boerne v. Flores, 521 US 507 (1997), SCOTUS declared RFRA unconstitutional because it overlapped with the protections afforded by the Free Exercise clause, and so essentially reaffirmed Smith, whose 'targeted law' test is still law today. Was the controversy in City of Boerne over a criminal law statute? No, it was a dispute over a city planning commission ruling that refused to grant a variance to a church that wanted to bypass a 'landmark' determination by the commission. The Free Exercise clause does not categorically distinguish between criminal laws that inhibit freedoms and civil laws that do the same.

Moreover, Free Exercise complaints, including the ones here, don't actually attack the actors but rather the law. Under the two causes of action in the complaint, it does not matter whether Greer acted impermissibly or not; only that the order itself infringed on the free exercise of religion. It's the law, not the actor's actions that the courts look to.

# posted by

scott pilutik : 10:45 PM

I've skipped most of the dialog here, because though the jury point is interesting in theory, it is not crucial to this case. Rather, the federal judge has refused to do even a de novo review-- that is, he won't look at transcript of the 2000 trial and give us his independent conclusion. Really, the whole debate is about a contested fact: Is there clear and convincing evidence that Terri would have instructed her food to be cut off in this situation?

Curiously, Judge Whittemore refuses to do the de novo review because of a point of law: he says there is no state action involved, just a hospice and a husband. Any comment, lawyers?

# posted by

Eric Rasmusen : 12:12 PM