Schiavo rehearing denied; two note dissents

By Lyle Denniston
on Mar 23, 2005 at 2:09 pm

UPDATE at 3:28 p.m.: The Eleventh Circuit denied rehearing en banc, with only two judges noting dissents among the 12 active judges voting. Chief Judge J.L. Edmondson’s order reads: “The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it,…the Suggestion of
Rehearing En Banc is DENIED.”
Judge Charles R. Wilson, the dissenter on the panel decision, dissented from this denial of rehearing. Also dissenting was Judge Gerald B. Tjoflat. In his separate, five-page dissenting opinion, Judge Tjoflat relied primarily upon the All Writs Act, disagreeing with the panel majority’s view of the scope of the court’s authority under that Act. The panel ruling, he wrote, “deprives us of authority to preserve our jurisdiction that the All Writs Act expressly confers. Accordingly, we should grant rehearing en banc to overrule it.”
(This order sets the stage for a move to the Supreme Court.)

Lawyers for the parents of a brain-damaged Florida woman, asking the Eleventh Circuit to review en banc their request for an emergency order to resume sustenance for their daughter, renewed their argument that Congress left the courts no discretion but to allow her food and water until there is a full trial on their lawsuit.

With the support of the Justice Department, and relying heavily upon the Eleventh Circuit panel dissent of Judge Charles R. Wilson, Robert and Mary Schindler contended that the panel majority misunderstood what Congress had done in enacting a special law giving them access to a federal court to plead for their daughter’s life. “The panel is strikingly selective as it picks legislative history that supports its conclusion that P.L. 109-3 preserves the discretion of the district courts to limit access to the jury,” the petition asserts. (Public Law 109-3 gives a federal court jurisdiction to hear the Schindlers’ case afresh.)

The new petition cites other parts of the record before Congress, suggesting that leaders in both the House and Senate understood that the special legislation “would be meaningless” if the jurisdiction granted to hear the Schindlers’ new lawsuit were not preserved by keeping Mrs. Schiavo alive in the meantime with nutrition and hydration.

The “plain meaning” of the language in the law that was passed, the parents argue, expressly provides that there will be a “full trial on the merits” of their challenge to state courts’ handling of their daughter’s legal rights. “It strains credulity to assert that Congress intended by this language to confer discretion on the trial court to destroy the jurisdiction created by P.L. 109-3 by standing idly while Terri Schiavo starves and dehydrates pursuant to the order of a Florida state court. Were that the congressional intent, giving the Schindler family the right to seek review of that order would be little more than a cruel hoax.”