Q: What is your take on the Schiavo case? Is this yet another example of an "activist" Judge making the law?

A: The appellate process is a fine tuned "dance" and is not like the "Perry Mason" trials we are used to seeing on T.V. So be careful as to what you think can happen and motives you attribute to the persons involved. Nevertheless, it is important to understand the process.

At the trial court level, decisions are made on the facts of the case in light of the appropriate law but the case is not retried on appeal. The laws are looked at to see if legally the trial courts actions were proper and if the appealing party has the right to step up to the legal plate again and be given extra swings at the ball, perhaps in a modified legal setting.

In the Schiavo case, Congress enacted legislation making the Federal Court system part of the judicial review process of this essentially state court proceeding. Congress did not clearly change the substantive law by, for example, enacting a bill to reconnect the feeding tube, which I am told they could have done. Nor did Congress clearly change the procedural rules such as requiring an injunction or changing the burden of proof to obtain an injunction, although later several Congresspersons indicated that is what they intended.

Can Congress interfere with the courts given the separation of powers provisions in the Constitution? Starting earlier than the Civil War, but gaining momentum during that conflict and thereafter, Congress has intervened in the procedural rules of the court systems, even in the middle of the legal process. So there are numerous examples of when the legislative branch changes judicial "rules" in midstream.

But the District Court Judge in Tampa, Florida, did not decide this issue because he used the presumption that CongressÕ action was proper and thus the Federal Courts could decide if the feeding tube should be reinserted and the case remanded.

The real issue was whether a federal injunction should be issued maintaining the status quo until a federal court could review whether the federal questions were adequately addressed--freedom of religion (should the feeding tube be withdrawn from a Catholic under these circumstances) and equal protection and due process under the 14th Amendment (was the legal process fairly administered as to this person).

But to obtain an injunction, several issues needed to be considered. To maintain the states quo, artificial nourishment and hydration needed to resume until the appeal on the federal legal issues could be heard. But to do so, the Court had to decide if under substantive state law (not procedural) that there was a "substantial likelihood" (the standard applied) that the tube would be permanently reconnected after the matter was remanded to the state courts for reconsideration. The JudgeÕs decision was no.

On appeal, the Eleventh Circuit in Atlanta, considered a normally "conservative" court, upheld the decision of the lower district court (2 to 1 in the panel and 10 to 2 for the entire judiciary). Why? Two reasons. First, the Appeals Court determined that if this case were sent back down to the Florida state system, there would not be a substantial likelihood that the decision would be reversed in light of the two federal issues involved. Secondly, this case is now being watched as to its impact on death penalty cases because the arguments used here and resulting decisions could have a significant impact on the criminal side of the law, even though this is a civil case. At least this is what I am being told by some of my friends who are in positions to argue these matters in front of the federal courts.

There was an appeal (the fifth time according to some news accounts) to the United States Supreme Court. Justice Kennedy, the point Judge, on the Supreme Court for this circuit, could have ordered the reconnecting of the feeding tube but did not because he has always deferred to the likely majority wishes. As predicted, the Supreme Court turned down the appeal.

The entire legal proceedings were restarted alleging that removing the tube violated the federal disabilities acts and the court appointed doctors over the years were wrong as to the current medical conditions. These positions were rejected yesterday morning.

There is little talk that the state executive branch (Governor Bush) will send armed individuals to put Mrs. Schiavo in protective custody "in defiance" of the judicial decisions.

I guess this is a good civicsÕ lesson on the problems of drawing lines between the judicial, executive, and legislative branches of the government.