Schiavo ex rel. Schindler v. Schiavo

• Citation: 404 F.3d 1270
• Decision Date: 30 March 2005
• Docket Number: No. 05-11628.,05-11628.
• Parties: Theresa Marie Schindler SCHIAVO, incapacitated ex rel., Robert SCHINDLER and Mary Schindler, her parents and next friends, Plaintiff-Appellant, v. 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

404 F.3d 1270

Theresa Marie Schindler SCHIAVO, incapacitated ex rel., Robert SCHINDLER and Mary Schindler, her parents and next friends, Plaintiff-Appellant, v. 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.

No. 05-11628.

United States Court of Appeals, Eleventh Circuit.

March 30, 2005.

David C. Gibbs, III, Gibbs Law Firm, P.A., Seminole, FL, for Plaintiff-Appellant.

Randall C. Marshall, Am. Civ. Liberties Union of FL, ACLU Found. of FL, Inc., Miami, FL, Rebeccca H. Steele, ACLU Found. of FL, Inc., Tampa, FL, George James Felos, Felos & Felos, Dunedin, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida

(No. 05-00530-CV-T-27-TBM); James D. Whittemore, Judge.

ON PETITION FOR EXPEDITED REHEARING EN BANC (Opinion March 25, 2005).

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR^*, Circuit Judges.

ORDER:

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 (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Emergency Petition for Rehearing En Banc is

DENIED.

BIRCH, Circuit Judge, specially concurring:

I concur in the denial of rehearing en banc in this case because any further action by our court, or the district court, would be improper, as I explain below.

An axiom in the study of law is that "hard facts make bad law." The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly qualify as "hard facts." And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.

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 or her 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. I conclude that Pub.L.109-3 ("the Act") is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case¹ under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case. Under the first amended complaint in this case (the initial complaint was improperly grounded on habeas corpus) a basis for jurisdiction was Pub.L. 109-3.² The second amended complaint adopted other, independent grounds for jurisdiction, including the Americans With Disabilities Act ("ADA"), The Civil Rights Act (42 U.S.C. § 1983) and The Rehabilitation Act of 1973. We have held that the Rooker-Feldman³ doctrine is jurisdictional. Clearly, application of that doctrine should have been made in this case, the effect of which would have been to decline to exercise any jurisdiction that we or the district court did have under the ADA, the Civil Rights Act or the Rehabilitation Act of 1973.

Since the passage of Pub.L. 109-3 on the morning of March 21, 2005, its constitutionality has been presumed. See Schiavo ex. rel. Schindler v. Schiavo, 357 F.Supp.2d 1378, 1382, 2005 WL 641710, at *1 (M.D.Fla.2005); Schiavo ex rel. Schindler v. Schiavo, No. 05-11556, 2005 WL 648897, at *1, 403 F.3d 1223, 1225 (11th Cir. March 23, 2005). In the instant appeal, our court and the district court continue to indulge this presumption and decline to address the constitutionality of the law which purports to grant federal jurisdiction. See Schiavo ex. rel. Schindler v. Schiavo, No. 05-11628, 2005 WL 681652, 403 F.3d 1289 (11th Cir. March 25, 2005). Jurisdiction, however, is a prerequisite to the legitimate exercise of judicial power, and therefore we may not hypothetically assume jurisdiction to avoid resolving hard jurisdictional questions. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998); Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869) ("Without jurisdiction the court cannot proceed at all in any cause."). I write separately to explain how various provisions of Pub.L. 109-3 are an unconstitutional infringement on the core principles of separation of powers and how this dynamic nullifies the exercise of federal jurisdiction in this case.

A. Pub.L. 109-3 and the Separation of Powers

It is axiomatic that the Framers established a constitutional design based on the principles of separation of powers. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803) (noting that separation of powers is one of the governmental principles "on which the whole American fabric has been erected"). The Framers established three coequal but separate branches of government, each with the ability to exercise checks and balances on the two others. And to preserve this dynamic, the "Constitution mandates that `each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others.'" Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 659, 102 L.Ed.2d 714 (1989) (quoting Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935)). Because of the important constitutional role assigned to the judiciary by the Framers in safeguarding the Constitution and the rights of individuals, see Federalist No. 78 (A. Hamilton), the execution of this constitutional mandate is particularly important when legislative acts encroach upon the independence of the judiciary. See INS v. Chadha, 462 U.S. 919, 961, 103 S.Ct. 2764, 2789, 77 L.Ed.2d 317 (1983) (Powell, J. concurring) (citing Federalist No. 48 for the proposition that the Framers enshrined in the Constitution separation of powers principles because of past legislative interference with the judiciary); Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60, 102 S.Ct. 2858, 2866, 73 L.Ed.2d 598 (1982) ("[T]he independence of the judiciary [must] be jealously guarded."). Accordingly, we risk imperiling our constitutional design if we do not inquire as to whether Pub.L. 109-3 infringes on the independence of the judiciary guaranteed by Article III of the United States Constitution.

Article III provides that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1. In defining the extent of federal judicial power, Article III provides that "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" and to certain other enumerated cases and controversies. Id. at § 2. These provisions have led courts to the unremarkable conclusion that "[f]ederal courts are courts of limited jurisdiction" and may only exercise jurisdiction allowed under the Constitution when "authorized by ... statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). Consistent with this dynamic outlined by Article III, and pursuant to its Article I powers, see U.S. Const. art. I, § 8, the United States Congress has vested federal courts with original jurisdiction to hear claims "arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331, and claims in which certain amount in controversy and diversity of citizenship criteria are met, see 28 U.S.C. § 1332.

Against these most elementary of constitutional principles, Section 1 of Pub.L. 109-3 — which states that the United States District Court for the Middle District of Florida shall have jurisdiction to hear a suit regarding alleged violations of rights held by Mrs. Schiavo "under the Constitution or laws of the United States" — is not facially unconstitutional. If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. Section 2 of the Act provides that the district court: (1) shall engage in "de novo" review of Mrs. Schiavo's constitutional and federal claims; (2) shall not consider whether these claims were previously "raised, considered, or decided in State court proceedings"; (3) shall not engage in "abstention in favor of State court proceedings"; and (4) shall not decide the case on the basis of "whether remedies available in the State courts have been exhausted." Pub.L. 109-3, § 2. Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle.

An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power "in a manner repugnant to the text, structure, and traditions of Article III." Plaut v. Spendthrift Farm,...