Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]

De Novo Trial v. De Novo Review

There seems to be a disconnect between the sides in the Terri Schiavo case as to what ‘de novo’ means. The term is most commonly found at the appellate level, describing the degree of deference given to the lower or previous court’s findings. ‘De novo’ is the least restrictive – the reviewing court can literally ‘look anew’ at the findings and rule accordingly. But even as ‘de novo’ is most commonly associated with deference of ‘review’, the term has an interesting sibling. Although I’ve never come across the exact phrase, it appears that ‘de novo trial’ is a term of art distinct from ‘de novo review’.

The DC Circuit (J. ROBINSON) said in NOW, Washington, D.C. Chapter v. Social Sec. Admin. of Dep’t of Health & Human Services, 237 U.S. App. D.C. 118 (D.C. Cir., 1984). “When I speak of “de novo review,” I refer to the distinction between a de novo trial, where the case is tried a second time and the record is made up in the district court, and a court’s review of findings of an administrative body, where the record is solely that of the administrative body.’” Local 777, Democratic Union Org. Comm. v. N.L.R.B., 195 U.S. App. D.C. 280, 310, 603 F.2d 862, 892 (1978), quoting Globe-Union, Inc. v. Chicago Tel. Supply Co., 103 F.2d 722, 728, 41 U.S.P.Q. (BNA) 366 (7th Cir. 1939).

The Act does not specify which use of de novo it intended:

In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

One inference is that as the jurisdiction has been given to the district court, it could only mean ‘de novo trial’ because district courts are trial courts, not appellate courts.

On the other hand, the district court is basically performing an appellate function, as the matter has already been adjudicated. Also, the term ‘de novo’ is most commonly used in the appellate context – indeed, I’ve never even heard the term de novo trial before I just now researched it to see if there was a distinction (but I’m only a law student – it may indeed be more common than I know).

Because the term has a commonly understood meaning, the legislature voting on it most likely attached that meaning as opposed to the more arcane one. Arguing for this is the fact that the bill represented a compromise – comments from the House floor support this (‘It merely confers jurisdiction; that’s all’ – to paraphrase numerous bill supporters). In other words, congressional intent has conveniently shifted from ‘merely jurisdictional’ while they were selling the bill to ‘retrial’ after it became law. It would be interesting to hear from the democrats who supported the bill as to what they thought it meant, as we already know what DeLay et. al. think ‘de novo’ meant. I don’t believe the bill would have garnered as many votes if democrats thought that there would be an entire retrial from scratch.

This interpretation favored by DeLay and the DOJ (and the dissent in the 11th Cir.), of course, might raise all sorts of other constitutional questions, as Terri Schiavo’s constitutional rights (as Defendant) become that much more trampled upon.
The district court was constrained to the determine whether the new claims by petitioners had a likelihood of success, and those claims were each constitutionally based – entirely unlike the state claims that began this dispute. If the petitioner’s wanted the case retried as the case first existed, it should have brought up the state claims, and simultaneously argue that no federal question was necessary because it was bestowed by Congress. In other words, force the district court to treat it like a diversity case. If this is what Congress intended, the petitioner’s pleadings do not honestly reflect that understanding.

Because the new claims are constitutional in nature, ‘retrying the case’ implies a whole new ballgame. An entirely different fact-finding mission would be necessary and because so much of it revolves around Judge Greer’s involvement, one that opens up a whole new can of worms. It’s not hard to conclude that the DeLay/DOJ/Dissent interpretation of the statute would add years to this litigation.

And again, this brings you back to the bill’s passage. Would they have gotten the votes if the voters knew that the bill intended to retry the entire matter from scratch?