tampabay.com

What both sides said and what judge decided

By WILLIAM R. LEVESQUE
Published March 23, 2005


In order to get a temporary restraining order from U.S. District Judge James Whittemore to force doctors to reinsert Terri Schiavo's feeding tube, her parents' attorney had to clear four hurdles, which are the same for any litigant seeking a restraining order:

1) Have a substantial likelihood of winning the eventual trial to determine if constitutional rights were violated.

2) Show irreparable injury will result unless an order is granted.

3) Demonstrate the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party.

4) If issued, the injunction would not be adverse to the public interest.

Whittemore ruled that attorneys could meet the last three burdens, but said the first caused problems because he did not think the parents could prevail at trial. Whittemore considered five violations of Schiavo's constitutional rights that David Gibbs III, attorney for Schiavo's parents, Bob and Mary Schindler, alleged were committed by Florida courts.

George Felos, representing Schiavo's husband, Michael Schiavo, said all the issues have been repeatedly litigated.

1) Schiavo's 14th Amendment due process right to a fair and impartial jury.

GIBBS: Pinellas-Pasco Circuit Judge George Greer, who ruled Schiavo would not want to live by artificial means, could not act impartially while he sat as Schiavo's "health care surrogate" and became an advocate for her death.

FELOS: Greer followed the rule of law and did what Florida statutes required.

WHITTEMORE: No evidence was presented that Greer was unfair. "Plaintiffs offer no authority for their contention that Judge Greer compromised the fairness of the proceeding or the impartiality of the court."

2) Other violations of due process.

GIBBS: Greer never appointed an independent attorney to represent Schiavo and denied Schiavo access to courts by failing to personally assess her condition. He said the judge should have personally assessed Schiavo's "level of cognition and ... responsiveness."

FELOS: Three guardians ad litem were appointed and helped adequately safeguard Schiavo's rights. The parents were represented at trial, and Schiavo has always been represented by counsel through her husband.

WHITTEMORE: There is no legal authority requiring a judge to personally assess a person's condition. "Theresa Schiavo's case has been exhaustively litigated, including an extensive trial, followed by another extensive hearing at which many highly qualified physicians testified" to reconfirm that no meaningful treatment was available, and six appeals. As the Florida 2nd District Court of Appeal states, "Few, if any similar cases have ever been afforded this heightened level of process."

And as to appointing an independent attorney, the court said it "cannot envision more effective advocates than her parents and their able counsel."

3) Schiavo's right to equal protection under the law.

GIBBS: Denying Schiavo an impartial judge merely because she is incapacitated violates the 14th Amendment.

FELOS: The new law actually violated her own right to equal protection under the law by singling her out. Congress cannot apply burdens to Schiavo that don't apply consistently to others.

WHITTEMORE: Again, no evidence was presented showing Greer was partial. "No federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance" with the law.

4) and 5) Two counts on Schiavo's First Amendment right to exercise her religion.

GIBBS: The pope and Vatican have recently expressed opposition to the denial of food and water to those who are incapacitated. Schiavo, as a devout Catholic, would not want anything done on her behalf that ran counter to church teaching, and doing otherwise jeopardized her soul.

FELOS: Removing food and water from someone in a persistent vegetative state is not always contrary to church teaching.

WHITTEMORE: To successfully bring a claim that religious freedom was curtailed, it must be proved that it was done by the state. The fact that the case was ruled on by a state judge does not qualify.

WHITTEMORE'S CONCLUSION: "This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time strained circumstances, however, and notwithstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it. As plaintiffs have not established a substantial likelihood of success on the merits, plaintiff's motion for temporary restraining order must be denied."