Posted on 11/12/2003 4:41:58 PM PST by sweetliberty
In recently filed legal papers, Florida House Speaker Johnnie Byrd defends the emergency law passed Oct. 21 that allowed Gov. Jeb Bush to order the reinsertion of Terri Schindler-Shiavo's feeding tube, thereby halting the court-ordered starvation death she had endured for six days.
The papers were filed Monday, the same day an attorney for the governor asked Florida's 2nd District Court of Appeal to throw out the lawsuit by Terri's husband, Michael Schiavo, that argues Bush and the legislature overstepped constitutional bounds when they acted to save the life of the 39-year-old brain-disabled woman. The appeal follows a denial of the motion Friday by Florida Circuit Court Judge W. Douglas Baird in Pinellas County.
Fla. House Speaker Johnnie Byrd
The Florida courts have consistently ruled Schiavo has the right to order removal of his wife's feeding tube because he is her legal guardian. Terri left no written directive, but Schiavo claims she told him in casual conversations that she would never want to be kept alive by "artificial means." He insists by ordering her starved to death he is carrying out her wishes.
Terri's parents, Bob and Mary Schindler, have fought their son-in-law in court for years over his intention to remove the feeding tube and his claim that he is doing what Terri would have wanted. They do not believe their daughter made such end-of-life statements. They further dispute a judge's ruling that she is in a "persistent vegetative state" from which she will never recover.
The Schindlers say Terri responds to them and could be rehabilitated if given the therapy and proper care that Schiavo has refused to provide.
Saving Terri 'repugnant'
In a 44-page brief, filed Oct. 29 with Judge Baird, Schiavo's attorney George Felos, a well-known "right-to-die" advocate, complains HB-35E – or "Terri's Law" – "eradicates Mrs. Schiavo's rights to privacy and due process," and is an "example of legislative and executive overreaching prohibited by the separation of powers enshrined in the Florida Constitution."
The new law "gives the governor unfettered and unreviewable discretion to 'stay' the withholding of artificially provided nutrition and hydration from Mrs. Schiavo and prevent her from dying with dignity," Felos contends in his brief, adding, "nothing could be more repugnant to the Constitution of the state of Florida." As it had threatened it would do if the legislature and governor acted to save Terri, the American Civil Liberties Union weighed in with Felos as co-counsel on Schiavo's side against the governor and Florida Attorney General Charlie Crist.
Howard Simon, executive director of the Florida ACLU, denounced Bush's actions as "unprecedented."
"This dangerous abuse of power by the governor and Florida lawmakers should concern everyone who may face difficult and agonizing decisions involving the medical condition of a family member," he said.
The state legislature was not named as a party in the lawsuit, but the House speaker in a motion Monday asked Baird for permission to file an amicus curiae ("friend of the court") brief, countering the arguments of Felos and the ACLU. The governor and attorney general are "properly defending" both the governor and the state of Florida against the claims raised by Schiavo, Byrd's motion reads. "However, the speaker, as constitutional presiding officer of the Florida House of Representatives, has an inherent responsibility to defend the authority of the House and of the Florida Legislature."
A 19-page amicus brief, prepared by attorneys Donald Rubottom and Thomas Tedcastle for the speaker, was filed with the motion. In it the authors contend the legislature has an absolute authority to change the law and these changes "can constitutionally affect the rights and obligations previously adjudicated by courts."
"The Legislature's role in establishing public policy is paramount, and its role in regulating the actions of the other branches [of government] is significant," they write.
Moreover, the legislature works continuously to change laws in response to unforeseen problems that arise from enforcement and judicial decisions made under existing statutes. In this case, the brief explains, concerns arose over insufficient protection for persons like Terri, and the legislature moved quickly to fix matters.
"HB-35E prospectively adds protection to the lives of certain incompetent residents of Florida reflecting the Legislature's dissatisfaction with the effect of the previous law," the brief declares.
Criminal cases reopened
As an example of this principle at work, Rubottom and Tedcastle point out that in 2001 the legislature did something very similar to what it chose to do recently for Terri – to protect possibly innocent convicts from court-ordered execution, it passed a law providing for post-sentencing DNA testing:
"Section 925.11 [of the Florida Code] arguably reopened hundreds of closed criminal cases. It provided new protections to convicts, allowing DNA testing to prove the innocence of inmates whose criminal cases were closed, a class including many with respect to whom the time to seek post-conviction relief had expired. Each inmate in these cases had been tried and convicted in the courts. The judgment in each of these cases was final, and the time for post-conviction relief had expired in many cases. Yet the Legislature added new protections to allow the convict to challenge the result of that final judgment. The Supreme Court has repeatedly approved of the purposes of that legislation."
There were few that complained that in passing a law allowing DNA testing the legislature "overreached" its jurisdiction.
HB-35E "adds new protections to the [constitutionally recognized] right to life of Terri Schiavo and other incompetents whose deaths by dehydration or starvation had been judicially ordered or approved in disputed cases as of Oct. 15, 2003. These protections were not previously provided by law and these protections, now enacted, can be implemented by the governor and upheld by this court without violating the separation of powers."
A classic executive guardianship role
As to whether or not the governor overstepped constitutionally set bounds, Rubottom and Tedcastle see the responsibility assigned to Bush in HB-35E – "to take responsibility for the nutrition and hydration of certain incompetents" – as a "classic executive guardianship role under the ancient doctrine of parens patriae ['parent of the country']."
"Petitioner [Michael Schiavo] apparently argues that this role of decision maker for the incompetent is not a proper executive function," they write. "But centuries of law contradict Petitioner's assertion. The court can take judicial notice of the many Florida statutes providing that the executive branch functions in a guardianship role for many incompetents, including juvenile offenders and certain disabled adults."
Byrd does not address the issue of Terri's constitutional right to privacy, which Felos charges has been violated. However, in a footnote the brief's authors remark they could find no cases where a statute enacted to provide protections to the lives of incompetent patients had been stricken by any court in the United States because it violated a right to privacy.
Other actions
While Byrd's attorneys were filing their amicus brief, Bush's legal representative was trying to get Schiavo's case dismissed on procedural grounds.
Last week, Kenneth Connor filed a motion with Judge Baird arguing that Schiavo's suit was invalid since neither the governor nor attorney general had been personally served notice and because it should have been filed in the state capital of Tallahassee where the law was enacted and the governor is based.
"The governor has a right to a home-venue privilege," Connor told the Tampa Tribune. Otherwise, Bush would have to "trot all over the state" every time someone sued him, Connor said.
Baird dismissed the motion, and Connor appealed to the 2nd District Court of Appeal, the same court that on several occasions had ruled against the Schindlers in their battle with Schiavo.
A brief from the governor defending the constitutionality of "Terri's Law" was due Monday, but Connor filed the appeal instead, triggering an automatic stay in the case until the issue is resolved.
Felos characterized Connor's filings as delay tactics and said he would probably file a motion asking Baird to vacate the automatic stay so the case could proceed while the appeal court decides the procedural issues.
"It's obvious to anyone looking at this that the governor is trying any legal tactic to delay this case being decided on its merits, and you have to wonder why," Felos told the Associated Press. "The obvious reason is that he thinks he's going to lose."
Jacob DiPietre, spokesperson for the governor, denied Bush was delaying the case or that he feared an ultimate defeat in the court.
"There's a procedure and process in place that every citizen has a right to, and Mr. Schiavo's attorneys didn't follow that process," DiPietre told WorldNetDaily. "So any delay that they are alleging is caused by them."
DiPietro called to mind the TV courtroom dramas "where a person shows up with a subpoena that he hands to somebody."
"That's how it's always done; that's every person's right," he explained. "But nothing like that happened in this case with the governor. [Schiavo's attorneys] are just demanding that [Bush] show up in court. But the governor has the right to be served and he has the right to have the case heard in his district."
DiPietro denounced as "absolutely not true" Felos' allegation that Bush is using delaying tactics because he is afraid of losing the case."
"The governor is supremely confident that the law the Legislature passed and his executive order are constitutional and will be upheld," DiPietro said.
Court filings, including Speaker Johnnie Byrd's brief and the petitions of the governor, are posted on the Schindler family's website.
"Section 925.11 [of the Florida Code] arguably reopened hundreds of closed criminal cases. It provided new protections to convicts, allowing DNA testing to prove the innocence of inmates whose criminal cases were closed, a class including many with respect to whom the time to seek post-conviction relief had expired.
Each inmate in these cases had been tried and convicted in the courts. The judgment in each of these cases was final, and the time for post-conviction relief had expired in many cases.
Yet the Legislature added new protections to allow the convict to challenge the result of that final judgment.
The Supreme Court has repeatedly approved of the purposes of that legislation."
1. Michael Shiavo also removed the feeding tubes of both of his parents. Was there also insurance involved?
2. Michael's frenzy to have Terri die should raise red flags.
3. Terri's accident was never properly investigated.
4. His lawyer, Felos, also appears to have a conflict of interest in this case.
5. Allegations have been made that Judge Greer, who has handed down some bizarre decisions favoring Michael, has not met certain qualification to even be a judge.
6. People have been in coma for 8, 16, 19 years and come out of it.
7. Michael has a mistress and two out of wedlock children yet refuses to divorce Terri.
8. No evidence of any kind exists that Terri would have wanted to be starved to death, a horrible way to die. We don't even allow the worst of criminals to die this way.
The list goes on.
To legally declare an alive person as 'good as dead' is murder.
Taking this out of the family and into the legislature is a terrible mistake.
That might be true if this were a right to die case where a person had a clearly written living will and was dying with no chance of recovery.
But what we have here is a right to kill case, where the victim may have been attacked by the person who later ends up to be her gaurdian, and the vicitm stands in the way of the gaurdian receiving money while alive ,and the fact that Terri was never dying. She was never in a coma, or brain dead.
So, your statemnet does not apply here, unless you think judges and guardians should have absolute power over their ward, or that a person waves their God given rights under the US constitution when they become disabled or dependant upon medical care or even another person .
God help us all if that is really what you believe.
Supplying someone with food and water is hardly "extraordinary means". Although gastrostomy tubes are not exactly a "natural" way of feeding someone, their use in many cases is for the mutual benefit and convenience of caretaker and patient. If it would require over an hour per meal to feed a patient by mouth and a g-tube can do the job in under five minutes, that does not mean the g-tube constitutes "heroic measures". It certainly does not justify discontinuing g-tube feedings while simultaneously withholding oral sustenance.
The people who want to starve/dehydrate Terri are seeking to do so not because she's dying, but because she isn't. Actually, the fact that Terri has survived as long as she has suggests that she is (or at least until recently was) in surprisingly good health. Although she is at present unable to communicate effectively, the fact that she's survived as well as she has suggests to me that she has more 'brainpower' than Felos et al. want to acknowledge.
Michael stated and was supported by Felos on LKL that the money received after the suit has dwindled to about 50 - 60 thousand dollars (the bulk of it going to Felos).
If, BIG "IF" this is true (which I personally doubt), is Felos now working Pro bono, and what is poor Mikey going to get out of it?
(NOTE: The last part of that question is really rhetorical.)
1. Safety from any chance that Terri could recover enough to get him indicted for the original wife beating and attempted murder. Even an autopsy on her body could do that, hence his plan for an illegal immediate cremation.
2. Freedom from her without having to get a divorce or give up any of his boodle. Freedom from possible future liability for the costs of her care. Freedom to marry the floozie. (Why she would want to marry him is another matter.)
3. The homicidal satisfaction of killing Terri in front of her parents and siblings. He hates Terri, hates her family.
4. Revenge on Terri. He blames her for all of this, can't wait to get even.
5. Sole heir to her estate. Who knows how much he has stashed from the settlement? There's also a possibility that the estate will be worth millions for movie, book and TV rights to her life story.
I honestly don't understand your statement. The person you responded to was right on the "prophetic"money. The "Big Picture" for the liberals, is to have the power of life and death over you. If we continue further down the slippery slope of nanny government, THEY will have the power of your life and death, because THEY will be paying for it.The way I understood the responder was Medicaid could decide you cost too much money and pull your plug. Over 5000 people a year in Denmark are killed each year and they don't want to die. The government decides who is most likely to benifit from the always limited funds they have and the kill the others. This is the culture of death you may have heard of. The abortionists want EVERY baby dead. Try to think of any statement to the contrary by the Femonazi's(Rush's term) They believe the trash of the land are muckig up the planet for everybody else and they want them dead. We will never achieve socialized medicine until we murder most of the people in our nursing homes now. They gobble up 3/4 of the money we have in their last couple of years. The liberals WILL cut them off if they get the chance so you and I can have free doctor visits. Only problem is, sooner or later, it will be your turn to be turned into "Soilent Green", for the children don't cha know!
That is why they always present their "mercy killings" like they are putting down a horse. "You really wouldn't want to live with a tube hanging out", or "She's all wrinkled now, who wants to live like that". Medicare and Medicaid have ruined the American medical system by giving blank checks to doctors and hospitals. Med insurance companies can't keep up, because they can't print money or raise taxes. We are so far down the road now, I don't know how to get back to the $5 office visit and the county hospital districts for the poor. The system is headed for a crash, and then we will beg the government to save us. They will, of course, but you will sell your soul to the devil. What will you do when THEY decide your child isn't worth saving? You can't pay and they won't pay. Instant votes for the political party that promises the most.
That said... yes, the whole thing does smell worse than a rotting fish. Felos and MS are flagrantly dishonest. Greer's rulings are so one-sided and heartless you have to figure he's in on it somewhere. Now we find he may not even be a judge!
But there is no difference of medical opinion about the 1991 bone scan. At least six doctors with no stake in the matter, including the one who actually did the scan, concluded that Terri had suffered severe trauma consistent with a beating. And that, in turn, is consistent with Terri saying to her sister that she wanted a divorce, and with the heavy, unusual bruises her mother noticed on her arms.
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Supercat, you are EXACTLY CORRECT!!! I couldn't have said it better.
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