Text of Schiavo court ruling

With respect to Plaintiffs' contention that Judge Greer violated Theresa Schiavo's procedural due process rights by failing to appoint a guardian ad litem, the record belies this contention. In June, 1998, Judge Rives sua sponte appointed Richard L. Pearse, Jr., Esq. as guardian ad litem "for the purpose of reviewing the request for termination of life support on behalf of the wards [sic]." In re Guardianship of Schiavo, No. 90-2908-GD-003 (Pinellas Cty. Circ. Ct, June 11, 1998). The record reflects that attorney Pearse "fully complied with his June 11, 1998 Court Order of appointment" and was accordingly discharged on June 16, 1999 by Judge Boyer of the Pinellas County Circuit Court. Pearse served as guardian ad litem for one year and ultimately testified as a witness in the trial before Judge Greer. In re Guardianship of Schiavo, No. 90-2908-GD-003 (Pinellas Cty. Circ. Ct., Feb. 28, 2000).⁵⁽⁵ he record also reveals that attorney John H. Pecarek was appointed as guardian ad litem early in the proceedings. In re Guardianship ofSchiavo, No. 90-2908-GD-003 (Pinellas Cty. Circ. Ct., Feb. 17,1994). Late in the litigation, at the request of Florida Governor Jeb Bush, Pinellas County Chief Judge David Demers also appointed attorney Jay Wolfson, M.D. as guardian ad litem. Schiavo VI, 2005 WL 600377 at *1, n. 2.⁾  Accordingly, assuming Fourteenth Amendment procedural due process requires the appointment of a guardian ad litem, there would be no constitutional deprivation here because three guardians ad litem were appointed to represent Theresa Schiavo's interests over the course of the litigation.

Plaintiffs' last contention is that Theresa Schiavo's procedural due process rights were violated by Judge Greer's refusal to appoint an independent attorney to represent her interests. The due process clause is implicated when there is a "deprivation of life, liberty or property at the hands of the government." Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). If one or more of these constitutionally protected interests is at stake, as they undoubtedly are in this case, the due process clause requires notice and the opportunity to be heard. Id, "It is ... fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Fuentes v. Cortes, 407 U.S. 67, 80 (1972). Unquestionably, in some circumstances, a meaningful opportunity to be heard includes the right to be represented by counsel. However, "due process is a flexible concept that varies with the particular circumstances of each case, and to determine the requirements of due process in a particular situation we must apply the balancing test articulated m Mathews v. Eldridge, 424 U.S. 319 (1976)." Grayden. 345 F.3d at 1232-33.

The Mathews balancing test requires consideration of three distinct factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335.

The first factor weighs the interest at stake. Plaintiffs urge that Theresa Schiavo's life is at stake, while Defendant argues that her liberty to exercise her right to refuse medical treatment is the interest being adjudicated. In either case, a fundamental and important interest is implicated in the court proceedings determining the removal of artificial life support.

The second Mathews factor requires consideration of the risk of erroneous deprivation under the procedures used and the probable value of the additional protections urged by the Plaintiffs. Theresa Schiavo's case has been exhaustively litigated, including an extensive trial, followed by another "extensive hearing at which many highly qualified physicians testified" to reconfirm that no meaningful treatment was available, and six appeals. As the Florida Second District Court of Appeal stated, "few, if any, similar cases have ever been afforded this heightened level of process." Schiavo VI, 2005 WL 600377 at *3.

Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Op. Atty. Gen. 96-94 (November 20, 1996). Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings.

With regard to the third factor, without question the state of Florida has an interest in the welfare of its citizens and in the legal process for adjudicating disputed claims such as were presented to Judge Greer in this case, as evidenced by Florida's well defined statutory scheme. The court's inherent authority to appoint a guardian ad litem, consult independent experts or appoint an attorney if warranted protects the state's interest.

Balancing the three factors, this court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests. Accordingly, Plaintiffs have not established a substantial likelihood of success on the merits on Count II.

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