The Terri Schiavo case is over, but it continues to have importance to the looming battle over judicial confirmations. For example, in a commentary titled Latest Assault on Judges Threatens Rule of Law, University of Chicago law professor Cass Sunstein argued:

The problem, as the legal battle over Terri Schiavo demonstrated, is that whatever their politics, judges are unlikely to ignore the law. In that case, the law clearly did not authorize federal judges to order Schiavo’s feeding tube reinserted — but some Republicans are outraged that the judges did not have it reinserted anyway.

Sunstein is wrong. The law clearly did authorize federal judges to order Schiavo’s feeding tube reinserted. The courts got it wrong.

The courts’ fundamental error was brushing aside the Schindlers’ meritorious argument that the Due Process Clause of the Constitution requires a showing of clear and convincing evidence for the withdrawal of a feeding tube under these circumstances.

If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue. And that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.

I do not believe this means a new evidentiary hearing was required. But, at a minimum, such a determination would require the federal district court to comb through a mountain of transcripts from various proceedings – something Judge Whittemore could not possibly have done in the few hours that he allowed himself to decide the Schindlers’ final claims.

The extended entry discusses the Schindlers’ claim that the federal Constitution requires “clear and convincing evidence” of the patient’s wishes in a case like that of Terri Schiavo. It analyzes how that claim was cavalierly dismissed by the federal courts. It also explains why this was, indisputably, a solid claim that justified the reinsertion of the feeding tube while the merits of the claim were reviewed.

The Schindlers’ Second Amended Verified Complaint alleged in Claim Eight:

89. The United States Supreme Court, in Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), determined that the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.

90. The February 11, 2000, Order (to discontinue the hydration and nutrition of Terri by feeding tube) was not supported by clear and convincing evidence that Terri would have made the same decision.

The complaint noted the shakiness of the evidence deemed “clear and convincing” by Judge Greer, and pointed to the judge’s clear error (mentioned on my blog here) in rejecting Diane Meyer’s testimony largely on the basis of a mistaken belief as to the date of Karen Ann Quinlan’s death.

Within hours, Judge Whittemore issued an order denying the request for an injunction removing the feeding tube. As to Claim Eight, he ruled as follows:

Plaintiffs contend, relying on Cruzan v. Missouri Dep’t of Health, 497 U.S. 261 (1990), that “the Due Process Clause of the Fourteenth Amendment requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that the incapacitated person would have made the same decision.” (Dkt. 36 ¶ 89)(emphasis added). Contrary to Plaintiffs’ contention, the Supreme Court in Cruzan did not mandate application of the heightened clear and convincing evidence standard. The question before the Cruzan court was whether the state’s application of the heightened evidentiary standard overburdened the patient’s right to refuse medical treatment, not whether it adequately protected the patient’s right to life.

Given the holding in Cruzan, Plaintiffs cannot complain of a deprivation of Theresa Schiavo’s Fourteenth Amendment procedural due process right. The state court judge applied the heightened clear and convincing evidence standard in determining her intentions, as permitted by Cruzan and in accordance with Fla. Stat. § 765.401(3). To the extent Plaintiffs complain that the quantum of evidence did not rise to the level of clear and convincing, these claimed evidentiary errors are a matter of state law, no federal constitutional law.

Thus, Judge Whittemore dodged the issue of whether the evidence in the Schiavo case was truly clear and convincing, by ruling that this evidentiary standard is not mandated by federal law. But the fact that Cruzan said that the clear and convincing standard is sufficient doesn’t rule out the argument that the clear and convincing standard is constitutionally required. In his unrelenting haste to issue an opinion within a few hours, Judge Whittemore didn’t even bother to address the latter issue.

The 11th Circuit affirmed, and on this issue began its analysis as follows:

Count Eight is a procedural due process claim asserting that under Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the Due Process Clause requires that decisions to remove hydration and nutrition from an incapacitated person must be supported by clear and convincing evidence that she would have made the same decision, and that there was not enough evidence in this case to meet that standard. The plaintiffs assured the district court that this was a procedural due process claim. Schiavo ex rel. Schindler v. Schiavo, ___ F. Supp. 2d ___, 2005 WL 677224, at *4 (M.D. Fla. Mar. 25, 2005) (district court order denying plaintiffs’ second motion for a temporary restraining order); Tr. pt. I at 16, pt. II at 15 (Mar. 24, 2005 oral arg. before the district court). The plaintiffs have no substantial case on the merits as to this claim for at least two independently adequate reasons.

First, Cruzan did not establish that the Constitution requires application of a clear and convincing evidence standard before termination of care. The Supreme Court held in Cruzan only that a state could, if it wished, require that evidence of the incompetent’s wishes be proven by clear and convincing evidence. Id. at 280, 110 S. Ct. at 2852 (“The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.”); id. at 284 ( “In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.”).

This is as far as Judge Whittemore ever got. To its credit, the panel recognized the issue that Judge Whittemore had missed: the fact that a standard has been held sufficient doesn’t rule out the argument that the standard is required. But any praise for the panel ends there, because it addressed this issue with the following woefully inadequate analysis:

Of course, holding that states may permissibly impose a requirement says nothing about whether states must impose it. One need look no further than the Cruzan opinion itself for that truism. Referring to a previous decision upholding a state’s favored treatment of family relationships in termination of care situations, the Court explained, “such a holding may not be turned around into a constitutional requirement that a state must recognize the primacy of those relationships in a situation like this.” Id. at 286, 110 S. Ct. at 2855. In case we missed the point, the Court reiterated it when discussing another decision: “Here again petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way. ” Id.

This does not address whether the relevant precedents would require a “clear and convincing evidence” standard under the federal Constitution. After purporting to recognize the need to decide this issue, the panel says only that the fact that the standard is permissible doesn’t necessarily mean it’s required. Okay . . . but we understood that already. The question is: is it required? The panel doesn’t say. It skips over the issue and says it doesn’t matter:

Second, even if constitutional law did work the way the plaintiffs want, contrary to the explicit teaching of the Supreme Court in the Cruzan opinion itself, they would still not have a substantial case on this claim. Plaintiffs would not, because Florida has adopted the very requirement that they say the Constitution mandates, a clear and convincing evidence standard, In re Guardianship of Browning, 568 So. 2d 4, 15 (Fla. 1990), and it was applied by the state courts in this case, In re Guardianship of Schiavo, 780 So. 2d 176, 179 (Fla. 2d DCA 2001).

I have no quarrel with the fact that the State of Florida had adopted the standard. Of course it had. The question is whether the courts had applied it correctly. On that issue, the 11th Circuit stated:

The plaintiffs argue that the state courts should have concluded that the clear and convincing evidence standard was not met in this case, but a quarrel with the result of a proceeding does not state a claim that due process was not afforded. Stated differently, procedural due process does not guarantee a particular result.

That’s it. The 11th Circuit completely skips over the issue of whether the “clear and convincing” standard is required, by saying that it doesn’t matter – the state applied the standard, and the appellate courts are not required to second-guess the application of the standard.

Wrong and wrong. First, the “clear and convincing” standard is unquestionably required in cases like the Schiavo case. Second, given that fact, the appellate court was required to determine (at a minimum) whether a rational factfinder could have decided that the standard was met. Arguably, the federal courts’ duty was more far-reaching: to determine for themselves whether they believed the evidence was clear and convincing.

Here’s the analysis that the court should have performed, beginning with the analysis that the “clear and convincing evidence” standard is constitutionally required:

The Due Process Clause of the 14th Amendment Requires a Showing of Clear and Convincing Evidence That a Patient in a Persistent Vegetative State Would Have Decided to Discontinue Hydration and Nutrition

The Due Process Clause of the 14th Amendment mandates certain standards of proof in certain types of cases. One commonly understood example is the reasonable doubt standard for criminal trials. That standard is not stated explicitly in the Constitution, but has been imposed as a matter of case law applying the Due Process Clause of the 14th Amendment. In Re Winship, 397 U.S. 358 (1970).

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Addington v. Texas, 441 U.S. 418 (1979).

The Addington case went on to explain that there are three basic standards of proof in the law. The lowest burden of proof is a “mere preponderance of the evidence” – the standard applied in “the typical civil case involving a monetary dispute between private parties.” The highest is the “reasonable doubt” standard applicable to criminal trials. The “clear and convincing” standard is an intermediate burden of proof applicable in cases deemed more serious than the typical civil case, but not as serious as a criminal proceeding. Such cases include deportation and denaturalization decisions, as well as some civil fraud cases in which there is some quasi-criminal wrongdoing by the defendant.

So which would apply in the Schiavo case?

Cruzan explicitly provides clear guidance as to which of these standards of proof is required under the Due Process Clause: the “clear and convincing standard.” Cruzan dealt with the issue of whether the State of Missouri could constitutionally require clear and convincing evidence that a person in a persistent vegetative state would want to die by having nutrition and hydration withdrawn. Cruzan does not hold that the “clear and convincing evidence” standard is required, because that issue had not been placed squarely before the Court. However, the following language unquestionably demonstrates that, if that issue had been placed before the Supreme Court, the Court would have ruled that the standard is required by the Constitution:

In our view, Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’” Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). “This Court has mandated an intermediate standard of proof - `clear and convincing evidence’ - when the individual interests at stake in a state proceeding are both `particularly important’ and `more substantial than mere loss of money.’” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, supra, at 424). Thus, such a standard has been required in deportation proceedings, Woodby v. INS, 385 U.S. 276 (1966), in denaturalization proceedings, Schneiderman v. United States, 320 U.S. 118 (1943), in civil commitment proceedings, Addington, supra, and in proceedings for the termination of parental rights. Santosky, supra. 10 Further, [497 U.S. 261, 283] this level of proof, “or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as . . . lost wills, oral contracts to make bequests, and the like.” Woodby, supra, at 285, n. 18.

We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as “a societal judgment about how the risk of error should be distributed between the litigants.” Santosky, supra, at 755; Addington, supra, at 423. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual’s life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, at 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death. [497 U.S. 261, 284]

(My emphasis.)

I challenge anyone to explain how a court could consider this language and conclude that the “clear and convincing evidence” standard would not be required, were the Court to address the issue.

One thing is clear: the federal courts did not even try. As I noted, Judge Whittemore did not even recognize the issue. The 11th Circuit also skipped the step, but tried to justify it as unnecessary. Their reasoning for this abject failure is shown wanting in the next section.

The Federal Courts Were Required to Determine Whether a Rational Factfinder Could Have Found Clear and Convincing Evidence of Terri Schiavo’s Desire to Have Artificial Nutrition and Hydration Withdrawn

As noted above, the 11th Circuit said that it didn’t matter whether the “clear and convincing” standard is constitutionally required, because they had no authority to second-guess the state’s application of the standard:

The plaintiffs argue that the state courts should have concluded that the clear and convincing evidence standard was not met in this case, but a quarrel with the result of a proceeding does not state a claim that due process was not afforded. Stated differently, procedural due process does not guarantee a particular result.

The panel completely failed to address the fact that federal courts are required to review the sufficiency of the evidence in other contexts where the Constitution imposes a burden of proof. One clear example is criminal cases.

As Judge Tjoflat noted in his dissent to the en banc opinion, the case of Jackson v. Virginia, 443 U.S. 307 (1979) ruled that, when a criminal defendant claims in federal court that the evidence against him in state court did not satisfy the “reasonable doubt” standard, the federal court is required to consider and render a decision on that claim. The Due Process Clause does not require the federal court to hold a new evidentiary hearing in every case (or even most cases), or to examine the evidence anew. But the federal court is required to consider the claim, and decide whether a rational trier or fact could have found that the evidence met the standard.

The Jackson v. Virginia court explained:

A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. . . . A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court.

The Court rejected the argument that this would force federal courts to replicate state criminal trials, noting that “courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact.”

The reasoning of the Jackson case is directly on point here. That case says that, because the “beyond a reasonable doubt” standard is a federal Constitutional standard, a federal court must review whether a rational factfinder could have found that the evidence met that standard. Logically, if the “clear and convincing evidence” standard is also constitutionally required – and I show above that it is – then a federal court would also be required to determine (at a minimum) whether a rational factfinder could have met that standard.

That is what Judge Tjoflat thinks the courts would be required to determine. But arguably, under the law passed by Congress, they were required to go further, and determine whether the evidence actually met the clear and convincing standard. This is because of the requirement of the Schiavo statute that Ms. Schiavo’s federal claims be determined de novo – a standard rarely applied when appellate courts determine the sufficiency of the evidence. It is true that the federal claim at issue here is simply one of due process: did the state order the withdrawal of the tube without evidence meeting the standard of “clear and convincing evidence"? But if that claim is to be judged de novo, then the federal courts arguably should have made their own independent determination of whether the evidence submitted to the Florida courts met the federally required standard.

My tentative view is that this does not mean that a trial would be required. Courts apply a de novo standard of review all the time, without ordering a new evidentiary hearing. However, there is a good argument that the federal courts should have reviewed the record fully and made their own determination as to the sufficiency – and ordered a new trial or hearing if they could not make this determination based on the cold record.

Doing this would require the issuance of an injunction. Given the errors that we know were made by Judge Greer, the plaintiffs had a substantial claim on this issue. An injunction was necessary to allow the district court more than a few hours to make this determination.

We would never allow such dismissive treatment of a death penalty case. Why is it thought acceptable here?

Finally, some may argue with my position by saying that, if I’m right, the Supreme Court would have reversed the 11th Circuit. Such an argument fundamentally misunderstands the meaning of a denial of certiorari. A Supreme Court denial of cert. is not a ruling on the merits, and means nothing.

Let me know what you think of the above analysis.

P.S. I have e-mailed this post to Professor Sunstein for his reaction.

P.P.S. Thanks to Xrlq for helping to clarify my thinking on this issue in dialogues here, here, and here.

P.P.P.S. Here is a handy reference to the briefs and decisions on the issue:

• The Schindlers’ First Amended Complaint raising Claims One through Five and seeking a stay.

• Judge Whittemore’s order denying the injunction. (Here is my initial post on his order.)

• The 11th Circuit’s order affirming (2-1) Judge Whittemore’s decision.

• The 11th Circuit’s order denying an en banc rehearing, with dissents from Judges Tjoflat and Wilson.

• The Schindlers’ Second Amended Verified Complaint, raising five new claims and seeking an injunction with respect to those claims. (Here is my initial post about that complaint.)

• Judge Whittemore’s second order, refusing an injunction pending a hearing as to claims Six through Ten. (My initial posts on Judge Whitemore’s order are here and here.)

• The panel decision of the 11th Circuit affirming the denial of the injunction. (Here is my initial post on that decision.)

• The 11th Circuit’s denial of en banc rehearing. Appended to this order is Judge Birch’s concurrence, opining that the law was unconstitutional; the concurrence of Judges Carnes and Hull; and the dissent of Judges Tjoflat and Wilson. (Here is my initial post on that decision.) tOR