Civil Disobedience and Terry Schaivo

[dilloduck]

They are following the legal process. Nothing bizarre about it.

yes there is -----the legal process itself and judges HAVE the ability to make new law-----they have done far too often !!!

 

[ReillyT]

For the record, we recognize that the evidence that Terri would want to continue in this state is as much earsay as that of her husband. However, when it is unclear as to the wishes as it is in this case the law should require the judge to err on the side of life.

The judge, after considering all of the evidence, didn't think the issue was unclear. The appeals courts have upheld this determination.

 

[ReillyT]

yes there is -----the legal process itself and judges HAVE the ability to make new law-----they have done far too often !!!

Whatever you may feel about judges generally, the judge here did not make new law at all.

 

[rtwngAvngr]

Humans are fallible and we do the best we can.

No. The best we can would be a new trial with ALL evidence and testimony included. Instead of much of it being deemed incredible by death agenda libs.

For the record, the evidence that Terri would want to continue in this state is as much hearsay as the testimony of her husband and others who have said she would not want to continue in this state. .

This state. That's the thing. Her state has been misrepresented by leaving out the testimony of those who dare cross Michael Schiave and the corrupt hospital administration which carried his water, firing nurses who complained about the coverup of her true condition.

Do you feel a bit slimy?

 

[Mr. P]

Not me personally. but I know that several nurses were silenced about terry's true condition and that they were silenced. The judge should care about their testimony. To not care is judicial negligence.

Let's have a smackdown. I'll meet you at the lenox food court! Just kidding. I'm a lover, not a fighter. and yes I send young americans to die for my war for oil, because I'm a chickenhawk.

I didn't think you had any...Just a parrot, huh? As far as the Judge caring about testimony, I know they do care. I also know it's not their job to collect the evidence or conduct an investigation.

You dropped in the bottom of this board months ago and informed all of us low lifes that the top of the board was for intellectual discussion and intellectual folks..I have to ask you, what the hell are you doing up here?

 

[ReillyT]

No. The best we can would be a new trial with ALL evidence and testimony included. Instead of much of it being deemed incredible by death agenda libs.

If your concern is the fallibility of humans, a new trial won't change anything.

This state. That's the thing. Her state has been misrepresented by leaving out the testimony of those who dare cross Michael Schiave and the corrupt hospital administration which carried his water, firing nurses who complained about the coverup of her true condition.

Do you feel a bit slimy?

How do you know that the testimony has been left out? The Schindlers have brought motions to have new witnesses heard and those witnesses have been heard. They have either been found not credible or their testimony was found not relevant, or their testmony, even if relevant and credible, was not enough to persuade the judge that the initial decision should be overturned.

How do you know that there has been a cover-up? What special insights do you have that the judges who have heard the case don't?

Do you really think that all of the doctors, the judges, and the hospital (which is paid for Terri's care) are in a vast conspiracy to kill a woman they don't even know? To what end? For what reason? On what basis do you make these determinations?

 

[rtwngAvngr]

I didn't think you had any...Just a parrot, huh? As far as the Judge caring about testimony, I know they do care. I also know it's not their job to collect the evidence or conduct an investigation.

You dropped in the bottom of this board months ago and informed all of us low lifes that the top of the board was for intellectual discussion and intellectual folks..I have to ask you, what the hell are you doing up here?

right it's only their job to ignore evidence they don't like.

As for the personal attack. Go suck a lemon.

 

[Bonnie]

In the interest of fairness here is part of the dissenting judge's opinion on the case.long but worth reading

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 23, 2005
THOMAS K. KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 05-11556
D. C. Docket No. CV-05-00530-T
THERESA MARIA SCHINDLER SCHIAVO,
incapacitated ex rel, Robert Schindler and
Mary Schindler, her parents and next friends,
Plaintiffs-Appellants,
versus
MICHAEL SCHIAVO,
as guardian of the person of
Theresa Marie Schindler Schiavo, incapacitated,
JUDGE GEORGE W. GREER,
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,
Defendants-Appellees.
--------------------------
Appeal from the United States District Court for the
Middle District of Florida
--------------------------
(WILSON, Circuit Judge, dissenting:
I strongly dissent from the majority’s decision to deny the request for an
injunction pursuant to the All Writs Act and the request for a preliminary
injunction. First, Plaintiffs have demonstrated their entitlement to a preliminary
injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates
Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo
alive until the federal courts have a new and adequate opportunity to consider the
constitutional issues raised by Plaintiffs. The entire purpose for the statute was to
give the federal courts an opportunity to consider the merits of Plaintiffs’
constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts
sharply against that intent, which is evident to me from the language of the statute,
as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s
death, which is imminent, effectively ends the litigation without a fair opportunity
to fully consider the merits of Plaintiffs’ constitutional claims.
We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency
injunctive relief. First, I note that there is no precedent that prohibits our granting
of this petition. Second, mindful of equitable principles, the extraordinary
circumstances presented by this appeal require that we grant the petition to
preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims
the full and meaningful review they deserve.
In considering this extraordinary case, I am mindful that “[t]he essence of
equity jurisdiction has been the power of the Chancellor to do equity and to mould
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we 1 adopted as
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
12
each decree to the necessities of the particular case. Flexibility rather than rigidity
has distinguished it. The qualities of mercy and practicality have made equity the
instrument for nice adjustment and reconciliation between the public interest and
private needs as well as between competing private claims.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping
those principles firmly in mind, “mercy and practicality” compel us to grant the
relief requested.
I. All Writs Act, 28 U.S.C. § 1651
The All Writs Act provides: “The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651. Federal courts have “both the inherent power and the constitutional
obligation to protect their jurisdiction . . . to carry out Article III functions.”
Procup v. Strickland, 792 F.3d 1069, 1074 (11th Cir. 1986) (en banc) (emphasis
added). Toward that end, the All Writs Act permits federal courts to protect their
jurisdiction with regards to “not only ongoing proceedings, but potential future
proceedings.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir.
2004) (internal citations omitted); ITT Comm. Devel. Corp. v. Barton, 569 F.2d
1351, 1359 n.19 (5th Cir. 1978)1 (“When potential jurisdiction exists, a federal
court may issue status quo orders to ensure that once its jurisdiction is shown to
exist, the court will be in a position to exercise it.”). Although the Act does not
13
create any substantive federal jurisdiction, it empowers federal courts “to issue
writs in aid of jurisdiction previously acquired on some other independent ground,”
see Brittingham v. Comm’r, 451 F.2d 315, 317 (5th Cir. 1971), and codifies the
“federal courts’ traditional, inherent power to protect the jurisdiction they already
have.” Klay, 376 F.3d at 1099.
An injunction under the All Writs Act is an extraordinary remedy, one that
“invests a court with a power that is essentially equitable, and as such, not
generally available.” Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S. Ct 1538,
1543 (1999). A federal court’s power under the Act, while limited, is broad
enough that “[a] court may grant a writ under this act whenever it is ‘calculated [in
the court’s] sound judgment to achieve the ends of justice entrusted to it.” Klay,
376 F.3d at 1100 (citing Adams v. United States, 317 U.S. 269, 273, 63 S. Ct. 236,
239 (1942)).
I am careful to stress that equitable relief under the All Writs Act is not to be
confused with a traditional injunction, which is “predicated upon some cause of
action.” Klay, 376 F.3d at 1100. An injunction entered pursuant to the All Writs
Act is not a substitute for traditional injunctive relief. The All Writs Act injunction
is distinguished from a traditional injunction not by its effect, but by its purpose.
To obtain relief under the All Writs Act, Plaintiffs need not satisfy the traditional
four-part test associated with traditional injunctions “because a court’s traditional
power to protect its jurisdiction, codified by the act, is grounded in entirely
separate concerns.” Id. However, Plaintiffs must show that “some ongoing
The majority opinion holds that the All Writs Act is not appropriate in this case becaus2 e
“where the relief sought is in essence a preliminary injunction, the All Writs Act is not available
because other, adequate remedies at law exist, namely Fed.R.Civ.P. 65, which provides for
temporary restraining orders and preliminary injunctions” Maj. Opn. at * 7-8. I do not argue with
that point. However, in this case, the relief Plaintiffs seek is not a preliminary injunction by another
name. Rather, the purpose for which Plaintiffs ask that we reinsert Theresa Schiavo’s feeding tube
is to permit a federal court to have time within which to exercise its jurisdiction and fully entertain
Plaintiffs’ claims. Thus, the purpose of entering an injunction in this case is limited to the narrow
goal of aiding the exercise of federal jurisdiction. Plaintiffs’ claim is precisely the one and only type
of situation in which an All Writs Act injunction is appropriate and for which there is no other
adequate remedy at law.
14
proceeding . . . is being threatened by someone else’s action or behavior.” Id.
Relief pursuant to the All Writs Act should only be granted in extraordinary
circumstances where inaction would prevent a federal court from exercising its
proper Article III jurisdiction.2
As an appellate court, we may grant All Writs Act relief to preserve our
“potential jurisdiction . . . where an appeal is not then pending but may be later
perfected.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 603, 86 S. Ct. 1738, 1742
(1966). In Dean Foods, the Supreme Court sustained the entry of a preliminary
injunction that prevented the consummation of a merger of two corporations. The
Supreme Court held that the use of an All Writs Act injunction was particularly
appropriate in a situation where “an effective remedial order . . . would otherwise
be virtually impossible.” Id. at 605. That is precisely the case here.
Plaintiffs have demonstrated that the issuance of an injunction is essential to
preserve the federal courts’ ability to “bring the litigation to a natural conclusion.”
Klay, 376 F.3d at 1102. By failing to issue an injunction requiring the reinsertion
of Theresa Schiavo’s feeding tube, we virtually guarantee that the merits of
Plaintiffs’ claims will never be litigated in federal court. That outcome would not
15
only result in manifest injustice, but it would thwart Congress’s clearly expressed
command that Plaintiffs’ claims be given de novo review by a federal court.
Given the extraordinary circumstances of this case, we are fully within our
power to issue an injunction “in aid of [our] jurisdiction” pursuant to the All Writs
Act. Under the Act, “[a] court may enjoin almost any conduct ‘which, left
unchecked, would have . . . the practical effect of diminishing the court’s power to
bring the litigation to a natural conclusion.” Klay, 376 F.3d at 1102 (citing Barton,
569 F.2d at 1359). Federal courts may “compel acts necessary to promote the
resolution of issues in a case properly before it” including “issu[ing] orders to aid
in conducting factual inquiries.” Id. (citations and internal quotation omitted).
The issuance of an All Writs Act injunction is, as mentioned earlier, an
extraordinary remedy. However, this case is clearly extraordinary. Furthermore,
entry of an All Writs Act injunction is necessary to preserve federal jurisdiction to
hear Plaintiffs’ claims. My research has not revealed any precedent which clearly
prohibits the entry of an All Writs Act injunction in a situation where a few days’
delay is “necessary or appropriate in aid of” federal court jurisdiction. 28 U.S.C.
1651. In contrast, refusing to grant the equitable relief would, through Theresa
Schiavo’s death, moot the case and eliminate federal jurisdiction.
This deprivation would directly contravene Congress’s recent enactment
granting jurisdiction in this case. An Act for the relief of the parents of Theresa

more.................http://www.ca11.uscourts.gov/opinions/todaysops.php

 

[no1tovote4]

The judge, after considering all of the evidence, didn't think the issue was unclear. The appeals courts have upheld this determination.

Once again, the Judge was working with a different set of rules as given them by law, the Judge ruled much evidence that I find to be truly engrossing and clearly effecting of the case to not be effecting based on his own opinion. The appeals courts only ruled on whether his ruling was within the law, and it was as I have previously stated multiple times the Judge did nothing wrong according to the law.

The thrust of my opinion is that the LAW should be changed to enforce a predisposition towards life in cases where there is clearly doubt as to the wishes of the patient as in this case. Regardless of what the judge may have ruled (which I do not argue against), reasonable people can see that there is doubt to be found here.

Apparently you are still not clear that laws and judges are different, when I say the law should be changed I am talking about the law, not the Judge. You take one tiny portion of my post, ignore the portion about how the law should be changed and then think you have made some sort of salient post that reflects a negation of my opinion.

When I say the law should be changed to reflect a certain thing, I am not saying that the Judge should be changed in any way.

 

[rtwngAvngr]

If your concern is the fallibility of humans, a new trial won't change anything.




How do you know that the testimony has been left out? The Schindlers have brought motions to have new witnesses heard and those witnesses have been heard. They have either been found not credible or their testimony was found not relevant, or their testmony, even if relevant and credible, was not enough to persuade the judge that the initial decision should be overturned.

How do you know that there has been a cover-up? What special insights do you have that the judges who have heard the case don't?

Do you really think that all of the doctors, the judges, and the hospital (which is paid for Terri's care) are in a vast conspiracy to kill a woman they don't even know? To what end? For what reason? On what basis do you make these determinations?

My inside knowledge of the new world order allows me to make such a sweeping claim.
After socialized medicine is implemented, they will, as a rule, deny care to people they deem not worth it, specifically, the elderly, babies, and high care individuals, to hide the inherent economic failures of socialized systems. The libs are preparing our minds to accept this horror. Reject it.

 

[ReillyT]

Once again, the Judge was working with a different set of rules as given them by law, the Judge ruled much evidence that I find to be truly engrossing and clearly effecting of the case to not be effecting based on his own opinion. The appeals courts only ruled on whether his ruling was within the law, and it was as I have previously stated multiple times the Judge did nothing wrong according to the law.

The thrust of my opinion is that the LAW should be changed to enforce a predisposition towards life in cases where there is clearly doubt as to the wishes of the patient as in this case. Regardless of what the judge may have ruled (which I do not argue against), reasonable people can see that there is doubt to be found here.

Apparently you are still not clear that laws and judges are different, when I say the law should be changed I am talking about the law, not the Judge. You take one tiny portion of my post, ignore the portion about how the law should be changed and then think you have made some sort of salient post that reflects a negation of my opinion.

When I say the law should be changed to reflect a certain thing, I am not saying that the Judge should be changed in any way.

You can't completely separate them. When you say it is unclear, and the standard is clear and convincing evidence, then I have to say that the judge thought the situation was clear (in terms of the standard). If you think the standard should be higher, which you obviously do (and I agree with you), and say that the situation isn't clear beyond a reasonable doubt, then I agree with you.

There are lots of posts here and I can't always keep track of who said what and when. Sorry if I misinterpreted your post and what you were implying.

 

[dilloduck]

Interesting----Jeb has sent in the adult protective services team !!!

 

[ReillyT]

In the interest of fairness here is part of the dissenting judge's opinion on the case.long but worth reading



more.................http://www.ca11.uscourts.gov/opinions/todaysops.php

I think it is a good opinion. I disagree with his result, but it is at least well-reasoned and provides a basis for granting injunctive relief.

 

[rtwngAvngr]

If your concern is the fallibility of humans, a new trial won't change anything.

What a f****** assinine arguement. because of human fallibility a new trial wouldn't help? You sound like a f****** idiot now.

You seem to think a judge is infallible.

 

[Jimmyeatworld]

On the Washington Post website, there is a good question and answer with Jay Wolfson, a physician and lawyer, who is a professor of medicine at the University of South Florida. He served as the court appointed, special guardian ad litem for Theresa Marie Schiavo, subsequent to the special law passed by the Florida Legislature in October of 2003. He delivered the report to Governor Bush about Terri's condition. It is quite good and offers insight about her medical condition and the causes of her initial collapse.

Among the things he states:
1. Terri was given an MRI to determine the condition of her brain matter.
2. There is no credible evidence to support the contentions that Terri can eat or drink anything on her own, including thickened liquids.
3. Terri was 250 pounds at the age of 18 and 120 pounds at the time of her collapse. This was the result of dieting. She would drink 15-20 glasses of ice tea per day, and this resulted in a "profound" electrolyte imbalance causing cardiac arrest.
4. He spent time with her, talked to her, cajoled her and played music for her, but was unable to find any consistent response. He did find reflex action.
5. If Terri "were given food, she would likely aspirate and either choke or develop an infection that would kill her. She does not eat or drink and she cannot."

This may help clear up some misinformation that is prevalent in this case.

http://www.washingtonpost.com/wp-dyn/articles/A57781-2005Mar22.html

That's one doctors story, here's another.

Dr. William Hammesfahr, nominated for the Noble Prize, says he believes there are therapies that could help her recover.

http://journals.aol.com/justice1949/JUSTICEFORTERRISCHIAVO/entries/562

Terri Schiavo's injury, hypoxic encephalopathy, is a type of stroke that he treats every day with success.

"We, and others I know, have treated many patients worse than Terri and have seen them regain independence and dignity," Hammesfahr said.

"There are many approaches that would help Terri Schiavo," Dr. Hammesfahr explained. "I know, because I had the opportunity to personally examine her, her medical records, and her X-rays."

"It is time to help Terri, instead of just warehousing her," he added. "She would have benefited from treatment years ago, but it is not too late to start now."

This isn't the first time Hammesfahr has discussed Terri's plight.

Last year, he explained that, after examining Terri, he believed that she could eventually eat and drink on her own. He also said he believes Terri would be able to talk and have good use of one arm and one hand should be given proper rehabilitative treatment.

Hammesfahr also said he thought Terri would eventually be able to transfer herself from a wheelchair to a bed.

"The patient is not in a coma," concluded Hammesfahr said after observing Terri. "She responds to specific people best. She tries to please others by doing activities for which she gets verbal praise."

He says Terri's eyes clearly fixate on her family and she tries to follow the simple commands her parents give her.
"She looks at you, she can follow commands," Hammesfahr said.

Just for the record, I don't like the fact that congress or even the courts had to get involvced, but I can't throw stones as I don't know enough about Florida law, what can be allowed in court, or how it has to be presented. I think it's obvious, however, that Terri's husband is the one that let it get to this point and he is the one that blocked certain medical treatments. It's a shame that her life is in the balance with nothing to lean anybody one way or the other but assumption.

 

[ReillyT]

What a fucking assinine arguement. because of human fallibility a new trial wouldn't help? You sound like a fucking idiot now.

You seem to think a judge is infallible.

That wasn't exactly my point (review the series of posts). You get so tense. I hope that you get your blood pressure checked regularly.

 

[dilloduck]

Looks like FL will put her in protective custody anyway

 

[rtwngAvngr]

That wasn't exactly my point (review the series of posts). You get so tense. I hope that you get your blood pressure checked regularly.

What is your point? That's exactly what you said, And it's idiotic. Give us all the presumably non-idiotic intended meaning of your words. Quick, think of something!

 

[no1tovote4]

The Appeals Court has rejected the appeal. It will now go to the SCOTUS.

 

[ReillyT]

That's one doctors story, here's another.

Dr. William Hammesfahr, nominated for the Noble Prize, says he believes there are therapies that could help her recover.

http://journals.aol.com/justice1949/JUSTICEFORTERRISCHIAVO/entries/562

Terri Schiavo's injury, hypoxic encephalopathy, is a type of stroke that he treats every day with success.

"We, and others I know, have treated many patients worse than Terri and have seen them regain independence and dignity," Hammesfahr said.

"There are many approaches that would help Terri Schiavo," Dr. Hammesfahr explained. "I know, because I had the opportunity to personally examine her, her medical records, and her X-rays."

"It is time to help Terri, instead of just warehousing her," he added. "She would have benefited from treatment years ago, but it is not too late to start now."

This isn't the first time Hammesfahr has discussed Terri's plight.

Last year, he explained that, after examining Terri, he believed that she could eventually eat and drink on her own. He also said he believes Terri would be able to talk and have good use of one arm and one hand should be given proper rehabilitative treatment.

Hammesfahr also said he thought Terri would eventually be able to transfer herself from a wheelchair to a bed.

"The patient is not in a coma," concluded Hammesfahr said after observing Terri. "She responds to specific people best. She tries to please others by doing activities for which she gets verbal praise."

He says Terri's eyes clearly fixate on her family and she tries to follow the simple commands her parents give her.
"She looks at you, she can follow commands," Hammesfahr said.

Just for the record, I don't like the fact that congress or even the courts had to get involvced, but I can't throw stones as I don't know enough about Florida law, what can be allowed in court, or how it has to be presented. I think it's obvious, however, that Terri's husband is the one that let it get to this point and he is the one that blocked certain medical treatments. It's a shame that her life is in the balance with nothing to lean anybody one way or the other but assumption.

His opinion conflicts with the opinions of the majority of the doctors that have evaluated her. If there were a higher standard of proof (which I favor), it might be easy to say that whether she can be rehabilitated hasn't been proved beyond a reasonable doubt. Unfortunately, that is not the standard prescribed by the state legislature and the courts have followed the law.

I have no opinions (nor the knowledge to form them) about Michael Schiavo. I don't know if he blocked rehabilitative treatments or (if he did) why he did so.