Governor Jeb Bush
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From: Governor Jeb Bush Jeb.Bush@MyFlorida.com
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Searched news for Governor Jeb Bush

Posted on Wed, Oct. 22, 2003
Judge agrees to special guardian for brain-damaged Florida woman
BY SEAN MUSSENDEN AND MAYA BELL
The Orlando Sentinel
http://www.centredaily.com/mld/centredaily/news/7078671.htm

CLEARWATER, Fla. - (KRT) - A judge agreed Wednesday to appoint a special guardian for Terri Schiavo, the severely brain-damaged woman whose tragic case has set off a legal firestorm in Florida.

But it was unclear exactly how broad the guardian's powers will be, or how he or she might affect Michael Schiavo's ability to make medical decisions on behalf of his wife.

Doctors began rehydrating Terri Schiavo on Tuesday night on the orders of Gov. Jeb Bush, who overrode the orders of a judge who six days earlier had her feeding tube removed. Hospital officials would not comment on her condition or say if her feeding tube had been restored.

At the same time, Terri's Law, as some are calling the hastily approved legislation that gave Bush the authority to restore her feeding tube, set off an intense constitutional debate. The legal experts seemed to concur on one point: No matter what the lower courts decide, that decision will set off a round of appeals that could be decided rather quickly and probably by the Florida Supreme Court.

As her spouse, Michael Schiavo has acted as his wife's guardian for years. After a decade of wrangling with her parents, Bob and Mary Schindler, he won the right to unhook her feeding tube.

He has said - and several courts have agreed - that his wife would not have wanted to be kept alive artificially. Her doctors say she is in a persistent vegetative state, brought on after a potassium imbalance caused her heart to stop in 1990. (or her husbands beating)

In 1992, Michael Schiavo won a more than $1 million malpractice judgment against his wife's doctors. Most of that is gone - spent on her care and legal fees. {Now lives with
another woman and has two children)

Terri's Law mandates that the Circuit Court appoint a separate guardian, called a guardian ad litem, to make recommendations to the governor and the court about her care. Pinellas Circuit Judge David Demers ordered Wednesday that a guardian be appointed, and gave Terri Schiavo's husband and parents five days to agree on one.

If they don't, Demers said he would appoint Dr. Jay Wolfson, director of the Florida Health Information Center at the University of South Florida in Tampa. Wolfson did not return a phone message left at his office Wednesday night.

Pat Anderson, attorney for Terri Schiavo's parents, wants the special guardian to have broad powers, including determining rehabilitative treatments and who can visit Terri Schiavo.

George Felos, an attorney for Michael Schiavo, did not return phone calls Wednesday.

On Tuesday night, doctors began rehydrating Terri Schiavo after six days, though scant information was available Wednesday about how her body was taking to the sudden reintroduction of liquids.

Bobby Schindler, Terri Schiavo's brother, tried to visit his sister at Morton Plant Hospital late Tuesday night, but was turned away by hospital staff who said they were acting on orders of Michael Schiavo. Wednesday afternoon, however, an attorney for Michael Schiavo faxed a letter to the hospital allowing the family back in.

It was unclear how lawyers for Bush and Attorney General Charlie Crist plan to argue that Terri's Law is constitutional. Assistant Attorney General Jay Vail, who argued in favor of the law at a brief court hearing in Clearwater late Tuesday night, said he could not comment Wednesday.

At the Tuesday night hearing, Felos asked Circuit Judge Douglas Baird to declare the new law unconstitutional and block Bush from ordering restoration of the feeding tube. Baird said he had not had enough time to review the law and ordered Felos to return with more detailed arguments within five days.

Felos argued that the law was unconstitutional for several reasons, most significantly that Bush had violated Terri Schiavo's protected right to privacy by forcing medical treatment on her. Felos also argued that the new law was passed solely to let Bush override the court's order, which he said violated the constitutional separation between the Executive and Judicial branches.

"It's unconstitutional on its face, its unconstitutional as applied to her," Felos said.

Vail, arguing for the state, told the judge that while, "this may not be the most perfect statute," it mandated the appointment of another guardian for Terri Schiavo, which would add another layer of scrutiny to any medical decisions made on her behalf.

He said the state agreed that she had a right to privacy and to reject medical treatment, but that the privacy right could be curtailed in certain situations that were of compelling state interest.

Whatever Baird decides, an appeal is virtually certain, legal observers said Wednesday.

The first stop would be to a court intimately familiar with the Schiavo-Schindler dispute, the 2nd District Court of Appeal in Lakeland.

Over the past six years, the 2nd District, which hears all appeals from Pinellas County, has issued four rulings in the case, consistently finding that Michael Schiavo had established clear and convincing evidence that his wife's wishes were not to be kept alive by artificial means.

This time, the appeals court would consider a different issue: Did lawmakers have the authority to pass a law allowing the governor to intervene and thwart a court order?

Legal experts who unequivocally believe the answer is no predict the law could fall on two or three of the grounds raised by Felos on Tuesday night.

They agree with him that the law violates Terri's right to privacy, the doctrine of separation of powers and a requirement that special acts be properly advertised before they are enacted. The last argument is technical, but it could derail the law, which was passed in record time. But the appellate courts must decide if the law was indeed a special act.

Bruce Winick, a constitutional expert at the University of Miami, said there's little doubt it is.

"It's a special law passed for one case, so that theory has legs," he said.

But he and several other observers said the separation of powers argument is the most potent, because it has implications far beyond the Schiavo case. At issue is the state Constitution's mandate that Florida's government be separated into three branches - the legislative, executive and judicial branches - and that "no person belonging to one branch shall exercise any powers" pertaining to either of the other branches.

"The law allowed the governor and the Legislature to take over the courts and that is profound," said University of Florida law professor Joe Little. "When has that ever been done in the state of Florida? Never. Think of the possibilities: All of a sudden we have a tyrant who can do whatever he wants, and the courts cannot protect you."

But Bruce Rogow, a noted constitutional lawyer at Nova Southeastern University in Broward County, Fla., said the law just might withstand constitutional challenge.

"Is it a bizarre act of the Legislature? Absolutely," Rogow said. "Is it a violation of the separation of powers? Arguably. But does the Legislature have the right to pass a statute to remedy an ongoing situation? I think the answer to that is, probably. So I dissent on the constitutional argument but concur on the profound absurdity."

How long the courts will take to sort out the issues is anybody's guess, but legal observers expect the case to move quickly. Some even speculated that the 2nd District might certify the issue directly to the Florida Supreme Court as a matter of great public importance.

Whether the case will eventually make it way to the U.S. Supreme Court, observers said, will depend on the what the Florida courts rule. If Florida judges base their decisions on a federal issue, such as due process, they could be reviewed by the nation's high court.

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© 2003, The Orlando Sentinel (Fla.).

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