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.
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.