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The 11th Circuit Court of Appeals, delivered a rebuke to the actions of Delay, The Cat Murderer, Bush, and The Radical Right. See Below the fold.

The Court ruled 9 to 2 against the Schindler's petition.  The two dissenting Justices (1- Ford appointee, 1-Clinton appointee).   All 6 Reagan/Bush appointees voted against the Schindlers.

Judge Stanley Birch, appointed in 1990, by George Bush Sr., writing in the majority, delivered this rebuke:

"A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc."

http://www.ca11.uscourts.gov/opinions/ops/200511628reh2.pdf


Originally posted to Al Rodgers on Wed Mar 30, 2005 at 01:35 PM PST.

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Comment Preferences

  •  No, no, no (4.00)
    The Birch opinion reflects the views of only Birch himself. It "specially concurs" in the result. There is no "majority opinion" beyond the simple order denying the petition for rehearing en banc.
  •  Judge Birch Rocks! (none)
    Reading that just gave me goosebumps--I love a judge who believes in upholding the law.

    Oh George, not the livestock!

    by espresso on Wed Mar 30, 2005 at 01:33:23 PM PST

  •  e-e-e-excellent (none)
    I was hoping that some court would accept this question long enough to make such a ruling.  It would have been sweeter to have Scalia slap DeLay et al.  But this will do.
  •  Correction: (none)
    It is my understanding that Birch was writing a CONCURRING opinion, not the majority opinion. Thus, the law wasn't struck down, but Birch does provide the beginnings of case law for arguing in the future that such laws like the one congress passed are unconstitutional.
    •  correct (none)
      The only order in this case was that there would be no en banc rehearing.  His whole concurrence is dicta.
      •  Dicta yes... (4.00)
        But politically important (and potentially precedent setting dicta) nonetheless... Should congress ever try that again, they will have this concurring opinion to contend with as part of the case law. Plus, the concurring opinion is just good for politics right now, considering the situation. That he rebukes them and says that if they were to grant what the schindlers ask for they'd be activist judges (and not the reverse) is certainly not meaningless.
        •  No no no (4.00)
          Dicta doesn't set precedent.  Dicta can inform the setting of precedent and give you some fun quotes, but it doesn't set it, and Congress can ignore it.

          As far as its political ramifications, sure.

          •  Dicta (none)
            You're right that it doesn't set binding precedent.  But it can, nevertheless be treated as persuasive authority for any future courts faced with a similar issue.  

            On the substance, I think Birch was spot on in rejecting the presumption of constitutionality where to do so would mean the court presumes its jurisdiction.

            •  Pleasantly Surprised (none)
              I have to say I was prepared for the worst.  My understanding is that the 11th Circuit is usually pretty friendly with the far right.  I hate to think what would have ensued had Judge Birch ruled differently.
  •  Political question... (none)
    Do you suppose that the Clinton appointee voted against the majority on purpose?  Just so the media couldn't focus on his opinion?  I know judges aren't supposed to be political, but in this case I wonder...

    "[A] 'Sharecropper's Society' [is] precisely where our trade policies, supported by Republicans and Democrats alike, are taking us." - Warren Buffet

    by RichM on Wed Mar 30, 2005 at 01:36:30 PM PST

  •  CNN (none)
    $100 that CNN completely misses what this is all about, even with all their Nancy Grace legal Smeagol action.  We'll see the "human interest" part and Randall Terry running around with a huge picture of a fetus, but nothing regarding how this judge's remarks demonstrate a commitment to resisting the destruction of rule of law by the Republican Party.

    John Stossel looks like a 70s porn star.

    by bink on Wed Mar 30, 2005 at 01:39:10 PM PST

  •  WOOHOO (none)
    In other words, "we're not the activists here, asshats -- you are!"  Take that!

    Frame:

    George W. Bush: Activist President.

    Two-step, lockstep, goosestep: Herr Busch's three-step plan to a righter tomorrow.

    by The Termite on Wed Mar 30, 2005 at 01:39:58 PM PST

    •  Well, since the executive is suppose to act... (none)
      I'm not sure how damning such a frame is. If you are going to frame the president, you need a frame shows how he is going over the executive's authority, which is what they are accusing the judiciary of doing: overstepping their authority. Despite the fact that that is exactly what they are doing themselve. Typical Republican hypocrisy and projection.
  •  to be fair (none)
    I may be in an army of one here, but I think that Tjoflat, not Birch, is correct as to whether Congress can set a standard of review for these cases and as to whether the Congressional action was constitutional.  Still, the correct order was entered in this case, given that there is no likelihood of success on the merits.
    •  How come (none)
      I'm with Birch.  More than the "rule of decision" issue he brings up from US v. Klein, the real problem I see with Pub. L 109-3 is that it forced the federal courts to reopen an otherwise final judgment of the state courts.  At least as far as I know, once SCOTUS denies cert, the underlying state court judgment is final as of that exact moment.  To my mind, this fact means that Plaut requires the 11th Circuit to hold the act unconstitutional.

      The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

      by Categorically Imperative on Wed Mar 30, 2005 at 02:20:43 PM PST

      [ Parent ]

      •  it's interesting (none)
        On second glance, that Tjoflat never mentions Plaut.  Hmm.  Still, Plaut only coverse Congressional attempts to overturn Article III courts, not state courts, though the underlying philosophy is the same.  

        I like your "but they denied cert." argument, but I don't think that the denial of cert in an appeal of a state court case (which is how it first got there, pre-this-law) can count as an Article III judgment.

        •  Fair enough (none)
          But how about this: the real problem with the law is that it's an ex post facto law; however, Calder v. Bull (however wrongly decided it may be) precludes that argument since it's not a criminal law.  But, the ex post facto nature of the law can be easily leveraged into a 5th Amendment due process argument on both procedural and substantive grounds .  Further, there's a 10th Amendment concern, as well, considering that the law directs the federal courts to utterly disregard state court findings, including findings on matters that are entirely within the purview of the state courts.  Congress does not have the power to strip state court decisions of any relevance whatsover on appeal to federal court.

          The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

          by Categorically Imperative on Wed Mar 30, 2005 at 02:55:54 PM PST

          [ Parent ]

          •  okay. (none)
            But, the ex post facto nature of the law can be easily leveraged into a 5th Amendment due process argument on both procedural and substantive grounds.

            Whose due process rights?  Unless you want to argue that it impairs Terri Schiavo's right to die, I'm not sure whose rights are affected.

            Further, there's a 10th Amendment concern, as well, considering that the law directs the federal courts to utterly disregard state court findings, including findings on matters that are entirely within the purview of the state courts.  Congress does not have the power to strip state court decisions of any relevance whatsover on appeal to federal court.

            Hmm.  Well, part of that depends on the congressional intent argument as to what the "de novo" review really meant, but even assuming it meant "conduct a new trial", I think they can.  Think about habeas review.  Actually, take a look at one of my favorite opinions from one of my favorite judges, the Hon. Stewart Dalzell, in the Lisa Lambert case.  

            Sometimes, a de novo review is merited, because the state courts can be that bad.

            •  OK (none)
              As for the 5th Amendment, I think that Terri's right to die is implicated, but more concretely at stake is Michael's right to speak on behalf of Terri (which was repeatedly validated in state court), along with his right to rely on res judicata.  Given the 'rules of the game' ex ante, Michael did all that he could, and won in every court he entered.  When the Florida courts finally set a date for removal of the feeding tube and after that judgment became final Congress changed the rules of the game without any prior notice to Michael Schiavo.  Procedurally and substantively, Congress's action strikes me as a due process violation.

              As for the 10th Amendment, I don't know that the example of habeas review validates what happened here.  For one, there have to be outstanding circumstances for a habeas petitioner to even get a merits hearing in federal court -- cause & prejudice or actual innocence.  Pub. L. 109-3 has no such requirement; it mandates a new hearing by legislative fiat.  Plus, in a habeas hearing the trial findings are not discarded as a matter of course; the court simply listens to whatever new evidence and arguments the petitioner has to offer and weighs it against the state court's findings, with a heavy bias towards validating whatever the state court said.  The Dalzell opinion (btw, the fact that some PA district attorney is that corrupt made me want to puke) is a good illustration; in persuasive cases a federal court will reverse a state court pursuant to habeas jurisdiction.  But in the ususal course of events, it doesn't happen.  And, of course, there's the additional distinguishing feature that access to the writ of habeas corpus is a constitutional requirement; what Congress did here is absolutely unprecedented and certainly not explicitly provided for in the Constitution.

              The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

              by Categorically Imperative on Wed Mar 30, 2005 at 03:50:46 PM PST

              [ Parent ]

        •  I think I gave up too early (none)
          I don't think it matters, for purposes of Plaut, that the final judgment was from a state court (after denial of cert) as opposed to a federal court.  Scalia slides in and out of discussing "Article III courts" and clearly the separation of powers rationale is based on the independence of the federal judiciary.  But, given Rooker-Feldman, the federal judiciary had provided its final word on the matter when the Supreme Court denied cert.  The state judgment was then final.  For Congress to come in after the fact and order the federal courts to re-open the case seems to violate the separation of powers principle at issue in Plaut just as much as if the original judgment had been a federal one.

          The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

          by Categorically Imperative on Wed Mar 30, 2005 at 03:08:11 PM PST

          [ Parent ]

          •  except (none)
            In today's SCOTUS ruling on Rooker-Feldman, Ginsburg, J., spoke for a unanimous court in holding:

            "Nor does §1257 stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. If a federal plaintiff "present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party ... , then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion." GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 728 (CA7 1993); accord Noel v. Hall, 341 F.3d 1148, 1163--1164 (CA9 2003)."

            The const'l claims are independent, no?

            •  Exxon doesn't apply (none)
              Because there the Court merely held that where concurrent state and federal cases exist, the fact that the state judgment is entered prior to the federal judgment does not trigger Rooker-Feldman.  Here, there was no concurrent federal case; it was all state-court proceedings until Congress intervened.  What Congress did was to attempt to carve out a one-case exception to Rooker-Feldman after the state court judgment became final.  That, to my mind, violates Plaut.  And while the constitutional claims might be independent, it was the Schindler's responsibility to raise them in a separate federal proceeding prior to the entry of final judgment (not that it would have mattered; the federal courts would have abstained).  

              The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

              by Categorically Imperative on Wed Mar 30, 2005 at 03:59:28 PM PST

              [ Parent ]

      •  and Plaut was written by Scalia (none)
        which makes it that much nicer a stick with which to club those who insist the judges below SCOTUS are all activist liberals, or wahtever.  They are following a precedent written by a man Bush 43 has said is one of his models for Supreme Court justices.

        Hmm,,   does that mean Nino will now NOT get the nod for Chief??

        Those who can, do. Those who can do more, TEACH!

        by teacherken on Wed Mar 30, 2005 at 02:30:49 PM PST

        [ Parent ]

        •  On behalf of the non-legal types (none)
          What was Plaut?  It sounds like a seafood dish.  Also, could one or more of you guys put out there, in plain english, what this all means?  I get the impression from what you're all saying that there's more to this ruling than simply denying the Schindler's motion, but I don't understand it.
          What happens next?

          "Michael Savage is the concience (sic) of the conservative movement"--Free Republic Poster

          by soonergrunt on Wed Mar 30, 2005 at 02:53:07 PM PST

          [ Parent ]

          •  Plaut (none)
            Plaut v. Spendthrift Farm is a 1995 Supreme Court case in which the Court held that a statute that required the courts to re-open judgments that had previously become final violated the principle of the separation of powers.  The key paragraph, IMO:

            When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than "reverse a determination once made, in a particular case." The Federalist No. 81, p. 545 (J. Cooke ed. 1961). Our decisions stemming from Hayburn's Case - although their precise holdings are not strictly applicable here, see supra, at 6-7 - have uniformly provided fair warning that such an act exceeds the powers of Congress.

            The 11th Circuit's decision effectively ends all legal discussion in the Schiavo case.  What we're discussing here is whether the law that Congress passed overnight allowing a new round of federal lawsuits was unconstitutional (and the implications that Judge Birch's concurrence, which argues that the law is unconstitutional) could have in the future if Congress ever becomes this frisky again.

            The power of accurate observation is commonly called cynicism by those who have not got it. --George Bernard Shaw

            by Categorically Imperative on Wed Mar 30, 2005 at 03:03:33 PM PST

            [ Parent ]

            •  Thanks for the help. So, if I understand you (none)
              correctly, the full court:
              a)   refused to hear their claim, after extending the time limit for them to file their claim for the full court to be heard.
              b)   did NOT, as a court declare the midnight-passed federal law, 109-3, unconstitutional, but--
              One of the judges, Birch, stated that it was unconstitutional on the grounds that it interferes with separation of powers between the branches and it essentially causes a federal court to invalidate a state court ruling, even though the federal court doesn't have the jurisdiction to do so.
              Birch, then goes on, at some point in his concurring judgement, to bitchslap the Congress and the Executive for their unconstitutional act that attempts to force the 11th circuit to be the dreaded 'activist judges.

              Anyway, that's what I gather.  When you say that The 11th Circuit's decision effectively ends all legal discussion in the Schiavo case you are saying that the 11th circuit has said that they have no right to hear the case in the first place?  And since the Supreme Court has already turned these people away, that the case reverts back to Florida, where it is settled law?

              Again, thanks for the help.

              "Michael Savage is the concience (sic) of the conservative movement"--Free Republic Poster

              by soonergrunt on Wed Mar 30, 2005 at 04:16:13 PM PST

              [ Parent ]

      •  probably a dumb question (none)
        but I'm curious as to whether there was a legislative grant of authority in the late 1990's allowing the Justice Dept to prosecute some of the 1960's cases, where the defendants were originally acquitted in state courts. Several of those high profile cases were initiated when witnesses came forward years later; the standard of review must have been de novo.  

        If there was a legislative grant to re-prosecute those cases, did it raise the same federalism/balance of power questions?

        Or is there a criminal procedure aspect grounded in the law that permitted the retrials, circumventing the double jeopardy issue?  Different elements of the federal crime, etc?

        The left has the collective killer instinct of the Quakers.

        by willowby on Wed Mar 30, 2005 at 03:38:16 PM PST

        [ Parent ]

        •  to clarify (none)
          1960's civil rights murder cases--church bombing, Medgar Evers, etc.

          The left has the collective killer instinct of the Quakers.

          by willowby on Wed Mar 30, 2005 at 03:41:51 PM PST

          [ Parent ]

          •  I can't speak... (none)
            generally, but quick Westlaw shows Byron De La Beckwith got two hung juries in the 1960s for killing Medgar Evars, but was convicted in 1994 under state law.  I don't think there was ever a separate federal claim other than potentially a "civil rights violation" claim, which is frequently used to retry acquited individuals.  (See, e.g., Rodney King.)
            •  ah...dual sovereignty and whatnot (none)
              I always lost track of my whatnots in Crim Pro.  :/

              Certainly not in any way factually analogous to Schiavo, except perhaps in a political sense:  

              "Consider, for example, the Rodney King affair. Initially, the federal government probably believed that the state trial would satisfy its concerns. Yet something happened during the state prosecution that threw the fairness of the process into question, namely, an unusual, almost unprecedented, change of venue that dramatically changed the possible racial composition of the jury. As a consequence, the federal government perceived a need to pursue a federal prosecution. See Paul Hoffman, Double Jeopardy Wars: The Case for a Civil Rights "Exception", 41 UCLA L. Rev. 649, 681 86 (1994)."

              Double Jeopardy After Rodney King FN60

              What is particularly interesting to note is the split within the ACLU over the retrial of the LA cops:

              "The above article by N. A. Lewis points out the division that occurred within the A.C.L.U. on this policy in the wake of the Rodney King beating. After the acquittal of the police officers involved in the Rodney King beating on April 29, 1992, the Southern California chapter of the A.C.L.U. urged the Justice Department to try the officers on federal civil rights charges. The A.C.L.U.'s strict policy opposing double jeopardy was suspended in June, 1992 to consider the impact of the policy on the officers' case. On April 4, 1993, in a close vote, the national board of the A.C.L.U. enacted a resolution opposing any exceptions to the American Constitution's prohibition against double jeopardy. However, all ten of the black members who were present voted to allow for second trials on civil rights grounds after acquittal on local charges."

              King Case Footnote 189

              It's easy enough to distinguish the two situations--legally and factually.  But there is an undeniable parallel of unusual executive action to overturn a final state court adjudication.  Under its own policy regarding second prosecutions, Justice had to find a "compelling interest" to proceed...I prefer to think in the King case it was pressed in the interest of justice as opposed to political pandering, but that's often where the two sides diverge.    

              The left has the collective killer instinct of the Quakers.

              by willowby on Wed Mar 30, 2005 at 11:12:31 PM PST

              [ Parent ]

  •  Yes - writing "in the majority" (none)
    as opposed to writing for the majority.

    That's how I wrote it up.

    And while his opinion was not joined, it was neither opposed by any majority member.  Two members of the majority wrote a separate opinion to address the dissenting opinion.

    Here actions speak as loud as words.

    And I've read plenty of concurring opinions that have been rebutted (all or in part) by other concurring opinion(s) by members of the majority.

  •  The Judges Conclusion (none)
    Judge Birch's Conclusion:

    The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS, 462 U.S. at 951, 103 S. Ct. at 2784. But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that Pub. L.109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon Soc'y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the 15 province of the judiciary. Such an Act cannot be countenanced. Moreover, we are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional bases to override a final state judgment. Should the citizens of Florida determine that its law should be changed, it should be done legislatively. Were the courts to change the law, as the petitioners and Congress invite us to do, an "activist judge" criticism would be valid.


  •  Noteworthy (none)
    Now let's see if it is noteworthy to these "All Shiavo, All the Time" So Called News Networks...Let's see if they pick up on "federal judge slams President and Congress on Shiavo Bill"...

    It is what NEEDED to be said by SOMEONE on this...

    TexasDemocrat http://www.whereisosama.com

    by TexasDemocrat on Wed Mar 30, 2005 at 01:47:37 PM PST

  •  Good for Birch (none)
    Well done.

    "Just say no to torture." -Semi-Anonymous Blogger.

    by Armando on Wed Mar 30, 2005 at 01:50:02 PM PST

  •  The Circuit Sucker-Punched 'Em (4.00)

     I think that's what happened.  You atty's out there know what I'm talking about:  if a Court wants to close the door, with finality, on your case, then (one tactic is) it rules in your favor on motion after motion, then, when it comes down to the final, dispositive motion, it denies or rejects it.  Little or nothing's (legitimately) appealable after that.    Or, at trial, it sustains all your objections and overrules all of the other side's then (if a bench trial) finds in favor of the other side!  Oomph!

     I'm not legally sympathetic to the Schindlers.  Not at all.  I think they've utterly abused the process -- aided and abetted by DeLay, Bush, Frist, and Jeb (and a bunch of clowns on Capitol Hill).  I'm emotionally sympathetic to them because they're obviously very deluded about their daughter and love her and miss her and that's very sad -- and the way they've been used by DeLay et al.

     Anyway, I think the Circuit did (may have done) the right LEGAL thing in granting the damn motion to rehear the thing:  that way they can't be (legitimately) accused of not looking over it, one more friggin' time!

     BenGoshi
    ________________
       

    Awaiting your calls, Chairman Dean, Senator Reid. Lines are open!

    by BenGoshi on Wed Mar 30, 2005 at 01:57:38 PM PST

    •  agree when you say (none)
      Anyway, I think the Circuit did (may have done) the right LEGAL thing in granting the damn motion to rehear the thing:  that way they can't be (legitimately) accused of not looking over it, one more friggin' time!

      From the main order, it seems like one judge asked them to consider the petition, even though it was after the deadline, and a phone poll they agreed to do that.  And having "looked" one more time, then slapped it down.

      Now, this is just a guess.  Maybe Birch had worked on his concurring opinion before, but had not finished it, and he was the one who asked for the reconsideration just to have the opportunity to get the opinion out?  Now that would be ironic.  I conisder it possible because that is a pretty lenghty and detailed opinion to ahve been drafted between when the ap;peal was granted late last night and when the deicsion was issued this afternoon, remembering that they had to hae time to print the decision and prepare to put it up on the website as a pdf.

      Or maybe someone else did Birch the favor by asking??  

      It does seem a little strange.  

      Those who can, do. Those who can do more, TEACH!

      by teacherken on Wed Mar 30, 2005 at 02:35:37 PM PST

      [ Parent ]

    •  there seems to be some evidence (none)
      that the parents are after money, and that's all. the rest is just political show, and being used by the politicians, you scratch my back and i'll scratch yours. i know it sounds sick but i believe it to be true.  put yourself in their shoes, and what would you do? turn your daughter's "life" into a circus?

      What... is the air-speed velocity of an unladen swallow?

      by Sargent Pepper on Wed Mar 30, 2005 at 03:41:42 PM PST

      [ Parent ]

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