Despite countless setbacks by the Florida judicial system, the parents of 40-year-old Terri Schindler-Schiavo have not given up hope that a state appeal court will let them join the legal battle over the constitutionality of “Terri’s Law,” which allowed Gov. Jeb Bush to save their daughter’s life last fall.
Passed on Oct. 21, the emergency statute authorized the governor to direct the reinsertion of the brain-disabled woman’s feeding tube after it was removed by order of her estranged husband, Michael Schiavo, who is also her legal guardian.
In a motion filed Friday on behalf of Bob and Mary Schindler, the American Center for Law and Justice, a Washington-based public-interest law firm specializing in constitutional issues, asked the 2nd District Court of Appeal in Lakeland to reconsider its recent ruling denying the couple permission to participate actively in the lawsuit brought by their son-in-law against the governor for stopping Terri’s starvation death.
“We have asked the appeal court to rehear the case and for the full panel to consider this case because this issue is so important,” said Jay Sekulow, chief counsel of the ACLJ in a press release.
Terri responding to her mother from video clip on Terrisfight.org
“To deny the parents of Terri Schiavo an opportunity to be directly involved in defending the state law that is keeping her alive is not only wrong, but contrary to Florida law,” Sekulow said. “We are hopeful the appeal court reconsiders and concludes that Terri’s parents have sound legal reasoning to intervene directly in a case involving the life or death of their daughter.”
On June 30, without explanation, a three-judge panel of the 2nd District Court of Appeal upheld a Mar. 11 decision by Pinellas County Circuit Court Judge W. Douglas Baird flatly rejecting the Schindlers’ request to be permitted to intervene in the case.
In his 13-page brief Baird ruled the Schindlers had not demonstrated a “legal interest” in the case “of such a direct and immediate character that they will either gain or lose by the direct legal operation and effect of the judgment.”
Justices Charles A. Davis, Carolyn K. Fulmer and Douglas A. Wallace did not write an opinion indicating how much of Baird’s reasoning they agreed with, but simply issued a per curiam affirmance decision – meaning “by [the] court: affirmed” – a practice used a great deal by Florida appeal courts. Devised as a way to lighten the huge caseload, judges are not required to write an opinion for every case but may simply rubberstamp a lower court ruling.
But without an opinion in hand, ACLJ attorneys and the Schindlers are prevented from appealing the court’s decision to the state Supreme Court as they would like to do. Indeed, a major criticism of per curiam affirmances is they can be used to block litigants from moving cases up the legal ladder, effectively heading them off at the pass.
In their motion requesting reconsideration, ACLJ attorneys asked not only for review by all 14 justices of the court, but a written opinion explaining why the court denied intervention.
“A written opinion will provide a legitimate basis for the Schindlers to appeal to the Supreme Court,” they explain. A written opinion denying intervention “would directly conflict” with Florida case law and “would provide a basis for discretionary review by the Florida Supreme Court.”
As to the basic issue – the denial of intervention status – the ACLJ contends the lower court’s rejection of Terri’s parents’ motion “misapprehended the law and facts” regarding the intervention standard of Florida Rules of Civil Procedure.
“The Schindlers have a constitutional due process right to be heard in these proceedings, which will determine whether their disabled daughter lives or dies,” the motion reads. Moreover, “[They] have been granted standing in companion proceedings which involve similar issues and interests.”
The state’s statutes and case law “are clear that the Florida intervention standard, allowing ‘anyone claiming an interest in pending litigation’ to intervene, is very broad and is to be applied liberally” – and “interested parties” with less at stake than Terri’s parents have been allowed to intervene.
Some examples: Florida courts have upheld the interests of parents and relatives in an adult daughter’s legal assets; in visitation of their grandchildren; in adopting the child of a relative and in adoption of a child by prospective adoptive parents.
“It is exceptionally important that the Schindlers be afforded at least the same opportunity as those interveners and interested parties, in a matter of life and death involving their natural-born daughter with whom them have maintained a close familial bond for approximately 40 years,” the ACLJ contends.
Intervener or ‘friend’?
George Felos, Schiavo’s “right-to-die” attorney, said there was no reason for the Schindler’s to participate.
“There’s no question that the governor is actively defending the lawsuit and there was no purpose to be served by adding additional parties,” he told Associated Press.
Though barred from participating, the Schindlers will be able to file an amicus curiae – friend of the court – brief and perhaps can score a few points with the high-court justices. But being barred from intervening could definitely hurt their chances of saving their daughter’s life a second time. Filing an amicus is simply not the same as being allowed to intervene.
“It’s the difference between being a bystander shouting encouragement to the team and being on the field playing,” said the parents’ attorney, Patricia Anderson, when Baird ruled against them back in November.
In an e-mail message, Jay Sekulow described further to WorldNetDaily why being allowed in the game is so important.
“In a case where the outcome may very well determine whether Terri Schiavo lives or dies, it is critically important that her parents be able to participate fully and directly in defending ‘Terri’s Law,'” Sekulow wrote. “In order to make the strongest arguments possible before the court it is imperative that they be permitted to be directly involved in the case. Without being permitted to intervene, the Schindlers are deprived of their input regarding issues affecting the life of their child. By intervening, the Schindlers will be able to take a direct and active role – through their attorneys – in defending a state law that is the only thing keeping their daughter alive.”
A bitter disappointment
Denial of their petition to intervene was a bitter disappointment to the Schindlers who have known few victories in their multi-year struggle to keep their daughter from being starved to death in accordance with Schiavo’s wishes.
But it was no surprise.
“Rulings like this happen all the time,” said Mary Schindler. “[Judges] are just bound and determined to kill my daughter, every one of them are. I don’t get it: why do they want her to die?”
“I wish they’d all go away – just give her back to me and let her live with us,” she added wistfully. “That’s all I want.”
As WorldNetDaily has reported, Terri collapsed under suspicious circumstances in the couple’s St. Petersburg apartment in February 1990, when she was 26. Oxygen to her brain was cut off for several minutes, leaving her severely brain-disabled, incapacitated and dependent upon a feeding tube for sustenance. She left no written directive.
Schiavo – who has lived 10 years with another woman, Jodi Centonza, with whom he has had two children – insists he is carrying out his wife’s wishes. He maintains she told him that if she were ever incapacitated she’d not want to be kept alive “through artificial means,” and four years ago convinced probate Judge George Greer to allow him to remove her feeding tube, claiming she is in a persistent vegetative state, or PVS, from which she will never recover – a requirement under Florida law for removing a feeding tube from a person who not terminally ill and otherwise healthy.
Terri’s parents don’t believe she ever made the statements attributed to her and insist that if given rehabilitative therapy she’d improve dramatically. Through a series of legal maneuvers they’ve managed to keep the case and their daughter alive, but their options appeared to have run out last year when 2nd District Court of Appeal made a final ruling in Schiavo’s favor and the Florida Supreme Court refused to hear the case.
In October, Terri suffered six days without food and water before state lawmakers passed “Terri’s Law,” and the governor ordered her feeding tube reinserted. Bush’s action was immediately challenged by Schiavo and his attorney George Felos, with the American Civil Liberties Union jumping in on Schiavo’s side as co-plaintiff.
Just as quickly, the ACLJ, which specializes in constitutional issues and protection of human life, asked the court for permission to intervene on behalf of the Schindlers.
“This is a very important case involving the state’s ability to act to protect human life,” said Sekulow at the time. He described Schiavo’s suit as “fatally flawed,” and said the legislature and the governor acted well within their constitutional authority to take actions that saved Terri’s life.
Responding to a motion by Felos, on Nov. 4 Baird dismissed the ACLJ motion to allow the Schindlers in the case, ruling that they “do not have a sufficient legal interest in the narrow subject [the constitutionality of ‘Terri’s Law’] that would justify formal intervention. Filing an amicus curiae brief would be sufficient for them to express their interests and let the higher courts know their concerns, he said.
On May 6, Baird handed Schiavo another victory by ruling Terri’s Law unconstitutional. In June, over the objections of Gov. Jeb Bush, the appeal court sent the case directly to the Florida Supreme Court, agreeing with Felos that the issue was a matter of great public importance and deserved immediate attention.
The Florida Supreme Court agreed to take the case. Oral arguments are scheduled for Aug. 31.
Information, including court documents, are posted on the Schindler family website.