Mercy in Florida - is "The Rule of Terri's Case" here to stay?

The Weekly Standard ^ | 02-17-04 | Wesley J. Smith

[phenn]

THE DAMNDEST THING JUST HAPPENED," an early morning caller who is close to the Schiavo case enthused on my voice mail. "The Second District Court of Appeal actually decided to start applying the law."

That would be big news. One of the most outrageous aspects of the Terri Schiavo debacle has been the almost universal adherence by the trial and appellate courts to the "The Rule of Terri's Case," a term coined by attorney Pat Anderson, who represents Terri's folks, Bob and Mary Schindler: "If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed."

Judges George W. Greer and W. Douglas Baird, both of the Sixth Judicial Circuit, have consistently applied The Rule of Terri's Case in their respective rulings. (Judge Greer is in charge of the guardianship case, and ordered Terri dehydrated to death. Judge Baird presides over the litigation filed against Gov. Jeb Bush by Terri's guardian Michael Schiavo to declare "Terri's Law" unconstitutional. Terri's Law permitted Bush to intervene and stop Terri's dehydration.)

Here's one example of Judge Greer following The Rule of Terri's Case: For nearly three years, he has not required Michael Schiavo to file the statutorily-required annual guardianship plan, which the court must approve each year in order to ensure that the ward receives proper and appropriate care. This protection is deemed so important in Florida law that court approval of the plan is

the act that conveys legal authority upon the guardian to make decisions on behalf of the ward. Yet, in an astonishing application of the Rule of Terri's Case, Michael has six times requested--and Greer has six times granted--requests for time extensions in which to file the annual guardianship plans. As a consequence, there has been no court-approved plan in place to protect Terri since June 30, 2001.

[phenn]

~ping~

[festus]

Well last I checked the governor still controls the men with guns.

And unless the legislature is willing to sack him for it the courts cannot have him removed from office. So he can in the words of Andrew Jackson say ( from memory ) "The courts have ruled now lets see them enforce it". He can then save this womans life regardless of the rule of the court.

This would be very welcome by me. The thought of congress passing laws to constrain the administration is commong. The administration vetoing the will of congress is common. The judicial branch overturning both the congress and the administration is commong.

But there is another part of the checks and balances that is woefully missing today. That is the ability of the legislative and administrative branches to simply ignore the rule of the court when the court gets out of line.

Should the administrative branch take this road it places itself at the mercy of the legislative branch as they can usually impeach over it. But if they are not willing to impeach and the public is willing to relect than the rule of the court is nullified.

This was a very important part of national, and has crept into state, constitutional systems. It was to prevent the tyranny of judges.

[festus]

commong= common ( can't type this am for some reason )

[T'wit]

Time for the judge jingles again, I think :-)

(I)
Michael Schiavo beats his wife,
Chokes her till he wrecks her life.
Steals her money, puts her down,
Starves her dead and goes to town.

(II)
Georgie Greer, your soul is black,
You pick on girls who can't fight back.
When Terri begged Communion Bread,
You pulled her feeding tube instead.

(III)
Baird be nimble, Greer be quick,
Kill the halt, the lame, the sick.
Kill the aged, kill the blind,
Kill anyone -- hey, they won't mind.
Kill the Christians, kill the Jews,
If they can't speak, it's what they'd choose.
They've no need of earthly things:
Kill their cats and steal their rings.

[T'wit]

Here's a new one just for Attorney McMoonbeam:

George, George Felos McMoonbeam,
Didn't you learn to share?
You stole all of the money
Awarded for Terri's care!

George, George Felos McMoonbeam,
Didn't mom say, "Don't lie"?
You keep twisting the truth,
Just to make Terri die.

George, George Felos McMoonbeam,
Didn't you have a dad?
It's not right to kill Terri!
Dad would have said, "You're bad!"

George, George Felos McMoonbeam,
Did you miss Sunday School?
God says, "Thou shalt not kill."
It's Satan who says, "Death's cool."

[Ohioan from Florida]

Here's a copy of the whole article for anyone who has trouble getting the excerpts to work. I hope it's okay to post the article in its entirety.

Mercy in Florida?
Will new court rulings in Florida help save Terri Schiavo's life? Or is "The Rule of Terri's Case" here to stay?
by Wesley J. Smith
02/17/2004 12:00:00 AM



"THE DAMNDEST THING JUST HAPPENED," an early morning caller who is close to the Schiavo case enthused on my voice mail. "The Second District Court of Appeal actually decided to start applying the law."

That would be big news. One of the most outrageous aspects of the Terri Schiavo debacle has been the almost universal adherence by the trial and appellate courts to the "The Rule of Terri's Case," a term coined by attorney Pat Anderson, who represents Terri's folks, Bob and Mary Schindler: "If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed."

Judges George W. Greer and W. Douglas Baird, both of the Sixth Judicial Circuit, have consistently applied The Rule of Terri's Case in their respective rulings. (Judge Greer is in charge of the guardianship case, and ordered Terri dehydrated to death. Judge Baird presides over the litigation filed against Gov. Jeb Bush by Terri's guardian Michael Schiavo to declare "Terri's Law" unconstitutional. Terri's Law permitted Bush to intervene and stop Terri's dehydration.)

Here's one example of Judge Greer following The Rule of Terri's Case: For nearly three years, he has not required Michael Schiavo to file the statutorily-required annual guardianship plan, which the court must approve each year in order to ensure that the ward receives proper and appropriate care. This protection is deemed so important in Florida law that court approval of the plan is the act that conveys legal authority upon the guardian to make decisions on behalf of the ward. Yet, in an astonishing application of the Rule of Terri's Case, Michael has six times requested--and Greer has six times granted--requests for time extensions in which to file the annual guardianship plans. As a consequence, there has been no court-approved plan in place to protect Terri since June 30, 2001.

Judge Baird has similarly adhered to The Rule of Terri's Case. First, he openly declared Terri's Law to be presumptively unconstitutional before Bush had even filed pleadings in the case. A court of appeal later ruled this wasn't bias and refused to remove him from the case.

Then, despite their direct and imminent interest in the case, Baird refused to permit the Schindlers to intervene as parties in the litigation over Terri's Law. He also granted Michael's request to bar the governor's attorneys from taking any depositions in the case, because, he said, allowing the collection of such evidence would merely rehash the already decided guardianship case--even though Bush was never a party to that proceeding. With these rulings under his belt, it seemed beyond doubt that Baird would invalidate Terri's Law as soon as the appeals brought by Bush and the Schindlers objecting to these and other early Baird rulings were brushed aside.

But now, a different panel of the Second District Court of Appeal than has previously ruled in the Schiavo cases has thrown a small monkey wrench into the legal machinery steadily moving Terri toward the precipice of death. The Court ruled that Judge Baird did not properly follow the law, both when he refused the Schindler's request to become parties to the lawsuit filed against Bush and when he prevented Governor Bush from taking depositions.

Upon reading the news reports, I was very excited. At first. But, when I downloaded the actual opinions, my initial enthusiasm ebbed. The Court of Appeal did not rule that the Schindlers must be allowed to intervene in the case, just that Baird "did not apply the [proper] rule" for making that determination. Nor is it certain that the Governor's requested depositions will ultimately be allowed to proceed. Instead, the Court slapped Baird on the hand for not engaging in proper legal analyses when issuing those decisions. Or, in other words, Baird disobeyed the rules of Florida law by following The Rule of Terri's Case, but the appellate court did not determine that the decisions themselves were necessarily erroneous. Thus, these victories could merely be a matter of forcing Baird to go through the proper motions in reaching the same conclusions.

Still, even though these rulings are minor victories, they are good news. An appellate court has finally required a Florida trial judge in the Schiavo case to follow the letter of Florida law. As a matter of fundamental due process, this is important. And, for all we know, following the proper rules might result in the Schindlers entering the litigation as parties, thereby permitting the formidable Pat Anderson to contribute her considerable legal skills to the cause. And better yet, perhaps the decision will result in Michael and others actually having to answer crucial questions under oath (but don't hold your breath). At the very least, however, the decision buys more precious time for Terri.

So my advice to all of Terri's many supporters is: Don't break out the champagne yet. These decisions are good news. But, at most, they are merely the first step in a thousand-mile journey to save Terri's life.


Wesley J. Smith is a senior fellow at the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture.




© Copyright 2004, News Corporation, Weekly Standard, All Rights Reserved.

[Ohioan from Florida]

Was there ever a way for the Schindlers to appeal the decision by Greer to grant those extensions to Michael for Terri's guardianship plan? Not that it could do any good at this point, but for future reference, or for someone else who finds themselves in a similar situation as Terri's family. Is it a decision that can be fought against?

[phenn]

I'm not entirely certain, but I don't think the judge allowing an extension to Michael is remidiable by appeal. I think it's just simple house-keeping on the part of the guardianship. Nonetheless, it's pretty shameless.

[Chocolate Rose]

BUMP

for later reading

[Ohioan from Florida]

Thanks for the info. I wasn't sure about it. It just seems that those who overlook the guardianship procedures would be able to point out to the judge that doing this for so long is not in the best interests of the ward, no matter what the relationship between the guardian and the ward. Since Greer is on the guardianship overseeing committee, you would think it could be appealable in some sort of fashion. Maybe we should get our legislators to pay attention to this small detail as well. We all know Greer's not going to overturn his own ruling, but it would be nice if there was some way to have recourse for this.

Almost every aspect of Terri's case is just such a travesty of justice. I guess reminding me of each portion will only serve to steel my resolve to help see that Terri gets justice. The judiciary in Pinellas county should be ashamed of themselves, yet they aren't. It's despicable!

[phenn]

http://www.family.org/cforum/fnif/news/a0030576.cfm

Court Allows Schiavo's Parents into Case by Steve Jordahl, correspondent

At last, some good news from a courtroom regarding Terri Schiavo.

A Florida court has ruled that Terri Schiavo's parents should have the right to defend their daughter's life in court ? and that the state can cross examine witnesses in the case.

It's the first favorable ruling for the disabled woman since Terri's Law was passed last October, allowing Gov. Jeb Bush to intervene and order doctors to reinsert Schiavo's feeding tube. The courts have consistently sided with her husband, Michael Schiavo, and the special interests that wish her dead.

Jay Sekulow, the lawyer defending Terri's Law, is pleased with the ruling.

"It does say one thing, and that is the idea that the parents had no vested interest in the outcome of their child is just ridiculous," he said. "Certainly, the three-judge court of appeals (panel) unanimously made that conclusion."

The ruling also allows lawyers to put Michael Schiavo on the stand. Terri's father, Bob Schindler, said they have hard evidence, corroborated by a radiologist, that she suffered severe injuries before her collapse.

"She had fractured ribs and, I think the pelvic area and a broken leg," Schindler said. "He put the timeframe in about the time when Terri collapsed."

The case now goes back to a lower court where the Schindlers will petition for guardianship of their daughter.

Terri is being fed through a tube, but otherwise is free of any life support assistance.

[Ohioan from Florida]

Isn't that just a different article talking about what we learned on Friday? We still don't know for sure whether Baird will let them in on this, do we? We do know that Felos will still try to file a petition another way, of course mentioning appropriate case law, where they shouldn't be allowed in. Or is this saying that Baird is going to allow them in?

[Leatherneck_MT]

Amen Brother

[phenn]

It's a bit of a repeat on that part, yes. But I wanted the info on the injuries to be seen as well.

[phenn]

So, Florida's lawmakers don't seem to have the time to consider legislation that makes it unlawful to intentionally dehydrate and starve to death a vulnerable ward:
http://www.theledger.com/apps/pbcs.dll/article?AID=/20040217/NEWS/402170325/1039

But, they DO have time to pass legislation that makes public suicide unlawful - even though suicide is already unlawful:
http://www.sun-sentinel.com/news/local/florida/sfl-217suicidelaw,0,2877045.story?coll=sfla-news-florida

</scratching head>

[cyn]

Hi, phenn -- thanks for the ping!

[phenn]

Florida House and Senate contacts:
http://terrisfight.org/housesenate.html

Session begins March 2 and Senate Bill 692 is not yet on the agenda. This bill makes it illegal to withhold food and water without prior written consent (advanced directive) from the patient. Either they let this bill be heard or they strike the law that calls food and water 'medical treatment'. If it's truly medical treatment, I should have the right to decide if I want it or not.