Posted on 11/21/2003 8:59:29 PM PST by JOHN W K
The Associated Press
Published: Nov 21, 2003
CLEARWATER, Fla. (AP) -
Gov. Jeb Bush asked an appeals court Friday to disqualify a judge in the constitutional battle over a law that allowed doctors to reinsert a brain-damaged woman's feeding tube.
The appeal came a day after Pinellas-Pasco Circuit Judge W. Douglas Baird refused to step aside as requested by Bush.
The governor wants Baird off the case after he said at a hearing last week that the hastily passed law intruded on Terri Schiavo's privacy rights and was "presumptively unconstitutional." Schiavo's husband Michael has offered those arguments and is suing Bush to challenge the law.
(Excerpt) Read more at ap.tbo.com ...
IN THE SUPREME COURT OF FLORIDA NO. 93, 649 NATHAN MIZRAHI and AVA RUTHMAN:
This Court cannot substitute its judgment for that of the Legislature as to the appropriateness of Fla. Stat. §768.21(8).
When faced with a challenge to the constitutionality of a statute, as here, there are certain "cardinal principals", which must be utilized in determining the constitutionality of a statute. These include the following:
1. The burden is upon him who assails the constitutional validity of a statute,
2. It is presumed that the Legislature intended a valid constitutional enactment,
and 3. When the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one which it would be unconstitutional and the other it would be valid, it is the duty of the Court to adopt that construction which will save the statute from constitutional infirmity. Boynton v. State, 64 So. 2d 536, 546 (Fla. 1953).
Therefore, in delving into a determination of the validity of a legislative enactment, this Court has stated on countless occasions that, "there is a presumption of constitutionality inherent in any statutory analysis." Gardner v. Johnson, 451 So. 2d 477 (Fla. 1984), citing Scullock v. State, 377 So. 2d 682, 683-4 (Fla. 1979); see also Dept. of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So. 2d 879 (Fla. 1983); Rich v. Ryals, 212 So. 2d 641 (Fla. 1968).”
So, Justice Baird, your assertion that Terri’s Law is "presumptively unconstitutional" is not only contrary the what the Supreme Court of Florida has already stated when the "cardinal principals" are followed, your statement is documented evidence of your willingness to ignore those principals and substitute your own predilections as the law of the land…the very definition of what our Founding Fathers often referred to as tyranny.
In addition, the state, as documented in CRUZAN v. DIRECTOR, MDH, 497 U.S.261 (1990) ought to err on the side of life:
“But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "[t]here will, of course, be some unfortunate situations in which family members will not act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 477 (1987). A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. 9 See Ohio v. Akron Center for Reproductive [497 U.S. 261, 282] Health, post, at 515-516 (1990). Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.” An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, at 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death. [497 U.S. 261, 284] “
In Terri’s case, there is no clear and convincing evidence that Terri wants to die, but only comments made by her husband and husbands family members as to what Terri would want. See
Schiavo's wishes recalled in records
John William Kurowski
American Constitutional Research Service
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This is isolated second hand information from a person with personal investment in the matter which is being focused upon and exaggerated out of proportion. It should be viewed as tainted evidence rather than being attributed as being absolute authority with such eagerness. Furthermore, the denial of rudimentary medical treatment reflects poorly upon the credibility of the testimony. The denial of medical treatment in itself could could be argued to be as great an intentional cause of Terri's present condition as the original injury.
The train of events has been one denying her medical treatment, arguing that her condition is hopless, then further arguing on the basis of hyped tainted evidence that she should be killed on the basis of weakly documented hypothetical wishes. From thence it is further argued that refusing to kill her is an unconstitutional intrusion into her life.
The judges in this are a serious blight to the judicial system and the lawyers on Terri's side could be more aggressive, more creative, and could serve the case better.
Meanwhile, another judge also refused Friday to disqualify himself in a separate battle over Terri Schiavo's guardianship.
Circuit Judge George Greer denied the request by Terri Schiavo's parents, Bob and Mary Schindler, who are trying to get Michael Schiavo removed as their daughter's guardian.
Greer has presided over the case the longest, and the Schindlers have tried three previous times to get him off the case. They charge he favors their son-in-law.
I would hope the people in Florida would avail themselves of whatever legal means possible to remove this blind, prejudiced judge from the bench as soon as possible.
I am convinced Terri’s Law is not only constitutional, but Florida’s Legislature and Governor Bush were obligated to come to Terri’s aid in the manner they did in view of their prime directive as Officers of the State of Florida. That prime directive requires in ARTICLE II, SECTION 5 that Public officers shall “…solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida…..”
In other parts of that Constitution, which Florida’s Legislature and Governor took an oath to protect and defend, is listed, as a basic right, the right to life, and that no person shall be denied this right because of physical disability, nor denied life without due process of law, while the right of trial by jury is secure to all and to remain inviolate. Also note that the federal Constitution also forbids the denial of due process of law…giving jurisdiction in federal Courts in certain cases where this right is denied by the state. Gov. Bush is now on the right track...have faith in him!
JWK
ACRS
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That is a first step. The second is whether he is representing his own interests rather than hers and there is a conflict between the two. It's going to require a go-for-the-throat lawyer to do it.
Terri has been royally cheated in that department. All the key "facts" found by Judge Greer are fictional. The man is so consistently wrong-headed and mean, you'd think he used to tear the legs off puppies.
Ping for a great job, John W K!
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The feeding tube is indeed keeping her alive. One reason is because she has been denied rehabilitation that would let her swallow for herself.
Should we kill anyone who, sometime after driving past some homeless people and says "I'd never want to live like that", loses their home?
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