(PAY SPECIAL ATTENTION TO WHAT IS STATED ABOUT "RULE 1.540-B-5")
8-31-04 FL SUPREME CT ORAL ARGUMENTS RE: CONSTITUTIONALITY OF TERRI'S
LAW TRANSRIPT, AUDIO/VIDEO LINKS AS WELL AS TEXT OF TRANSCRIPT
BELOW.

----- Original Message -----
From: melissa roxanne
To:
Sent: Tuesday, August 31, 2004 6:31 PM
Subject: FL SUPREME CT. HEARING TRANSCRIPT / VIDEO ON TERRI'S LAW
8-31-04


Transcript:
http://www.wfsu.org/gavel2gavel/transcript/04-925.htm

Real Video:
http://www.wfsu.org/rafiles/archives/04-925.ram


Note to self:
I didn't send the text of the transcript to my list re: Terri. I
sent them the above links instead. I am copying the text of the
transcript now for my own reference. Melissa

The following is a real-time transcript taken as closed captioning
during the oral argument proceedings, and as such, may contain
errors. This service is provided solely for the purpose of assisting
those with disabilities and should be used for no other purpose.
These are not legal documents, and may not be used as legal
authority. This transcript is not an official document of the Florida
Supreme Court.



Jeb Bush v. Michael Schiavo

CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN, AND WELCOME TO THE
FLORIDA SUPREME COURT . THE FIRST CASE THIS MORNING IS BUSH VERSUS
SCHIAVO. ARE THE PARTIES READY ? ALL RIGHT. NOW , I UNDERSTAND THAT
YOU ARE SPLIT BE YOUR TIME , AND YOU ARE GOING TO MAKE THE INITIAL
ARGUMENT .

YES, YOUR HONOR.

CHIEF JUSTICE: ALL RIGHT. YOU MAY PROCEED. GO AHEAD.

THANK YOU, YOUR HONOR. MY NAME IS ROBERT DESTROW , HERE TO REPRESENT
GOVERNOR BUSH IN THIS CASE AND WITH ME ARE KENNETH CONNOR, WHO WILL
ARGUE IN REBUTTAL AND CAMIELLE GODWIN .

CHIEF JUSTICE: BEFORE YOU GET INTO YOUR ARGUMENT, THE COURT WOULD
APPRECIATE IT IF, IF YOUR ARGUMENT, YOU WOULDADDRESS THE SEPARATION
OF POWERS, FIRST , WITH THE PRIVACY ARGUMENT , AND WITH WHATEVER FREE
TIME YOU HAVE , YOU CAN ARGUE THE OTHER ISSUES.

THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT. TERRI SCHIAVO DID NOT
HAVE AN INDEPENDENT BENEFIT O F

JUSTICE WELLS : LET'S TRYTO GET INTO THE ARGUMENT ON SEPARATION OF
POWERS. LET ME ASK YOU THIS. WOULD YOU AGREE THAT THE GOVERNOR DID
NOT HAVE THE POWER TO ORDER A STAY ON OCTOBER 15 , 2003?

YOUR HONOR , NO , I THINK THE ORDER TO , THE STAY IS BASED ON THE
ACT , YES , YOUR HONOR .

JUSTICE WELLS : SO THE GOVERNOR'S POWER TO ACT ANDENTER A STAY, CAME
SOLELY FROM THE LEGISLATURE.

YES , YOUR HONOR. THE POWER OF PERINS PATRIATE

JUSTICE WELLS : IS THIS SOMETHING UNIQUE TO GIVE THE GOVERNOR THIS
POWER OR COULD THE LEGISLATURE GIVE THE POWER TO YOU?

YES , YOUR HONOR , THE LEGISLATURE HAS GIVEN THEPOWER T O ANY PERSON
IN THESTATE OF FLORIDA, TO RAISETHE QUESTION OF THE RIGHTS OF A
VULNERABLE ADULT IN AN APPROPRIATE COURT, AND THAT IS REALLY , ALL
THIS ACT DOES .

JUSTICE WELLS : I HAVE GOT ONE MORE QUESTION ALONG THIS LINE. NOW ,
THIS LEGISLATION, THEN , THAT DELEGATED THIS POWER, IT DID IT TO
INVOLVE, IN REALITY , A SINGLE CASE , CORRECT?

NO , YOUR HONOR. IT DID NOT .

JUSTICE WELLS : WELL , WHAT OTHER CASES WOULD MEET THE DESCRIPTION OF
SOMEBODY THAT HAD THE COURT ORDER ED , THE WHOLE LINE OF THINGS THAT
ARE IN THIS STATUTE , OTHER THAN THE PETITIONER IN THIS CASE?

WELL , YOUR HONOR , THE STATUTE, ITSELF , IS OPEN ENDED . CERTAINLY
TERRI SCHIAVO FITS WITHIN THE DESCRIPTION OF THE STATUTE , BUT IT
WOULD B E A QUESTION OF FACT AS TO WHETHER OR NOT THERE ARE OTHER
PEOPLE IN THE STATE OF FLORIDA , AT ANY GIVEN, DURING THE TIME THIS
STATUTE WAS IN EFFECT , IT WOULD CERTAINLY BE A QUESTION O F FACT,
AND THERE ARE OTHER PEOPLE WHO COULD FIT THAT DESCRIPTION.THE STATUTE
IS VERY CLEAR ON ITS FACE , THAT YOU DON'T HAVE AN ADVANCED
DIRECTIVE, THAT THE COURT HAS FOUND THAT , WHEN NUTRITION AND
HYDRATION CAN BE WITHDRAWN, THERE COULD BE ANY NUMBER O F PEOPLE, AND
IT WOULD BE A QUESTION OF FACT AS TO HOW MANY WERE IN THE STATE OF
FLORIDA AT THAT TIME .

JUSTICE QUINCE : WOULDN'T THIS HAVE TO FIT INTO THIS 15-DAYTIME
PERIOD? THIS ACT CAME INTO EFFECT ON A PARTICULAR DAY , AND 15 DAYS
LATER , IT IS NO LONGNER EFFECT, ISN'T THAT CORRECT?

YES , YOUR HONOR , THAT IS TRUE .

JUSTICE QUINCE : SO AS TO WHETHER SCHIAVO IS THE ONLY PERSON THAT
MEETS THE CRITERIA OR SOME OTHER PEOPLE WITHIN THE STATUTE , IT WOULD
HAVE TO BE WITHIN THAT SHORT, 15-DAYTIME PERIOD, THAT NOT CORRECT,
AND THEY WOULD HAVE TO MEET EACH OF THE CRITERIA OUTLINED IN THAT
STATUTE.

YES, YOUR HONOR , IF I CAN JUST ADD, THOUGH, IF THE LEGISLATURE , THE
SEPARATION OF POWERS ISSUE THAT THECOURT IS RIGHTLY CONCERNEDABOUT ,
WOULD ALSO BE THECASE, I F THE LEGISLATURE HAD AMENDED CHAPTER 765
AND PROVIDED THIS AS A PROCEDUREACROSS THE BOARD , WHICH IT COULD DO,
AFTER THIS CASE , WITH MR. CHIEF JUSTICE

WELL , NOW , LET'S WITH .


CHIEF JUSTICE: WELL , NOW , LET'S GET BACK TO THE ISSUE OF THE
SEPARATION OF POWERS. ONE IS A CONSTITUTIONAL ISSUE, WHICH IS IF THIS
IS AN UNLAWFUL DELEGATION OF UNFETTER ED DISCRETION TO THE EXECUTIVE
BRANCH AND THE SECOND ISSUE WE ARE TALKINGABOUT IS WHETHER , IF
APPLIED TO TERRI SCHIAVO, IT IS A JUDICIAL BRANCH 'S FINAL ORDER
GIVING THE GOVERNOR SUPER APPELLATE POWER , SO ON THE UNFETTERED
DISCRETION ISSUE AND GOING BACK TO WHAT JUSTICE WELLS SAYS , ARE
YOUSAYING THIS STATUTE COULD HAVE BEEN SET UP AND GIVENTHE POWER TO
ISSUE THIS ONE-TIME STAY TO ANYBODY, ANY AGENCY IN THE
EXECUTIVEBRANCH?

NO , YOUR HONOR. THE LEGISLATURE GAVE THIS POWER TO THE GOVERNOR,
BECAUSE THE GOVERNOR , HISTORICALLY, STANDS IN THE ROLE OF PARENS
PATRIATE, THE ULTIMATE DEFENDER OF CIVIL RIGHTS IN THE STATE OF
FLORIDA , SWORN TO SEE THAT THE LAW IS FAITHFULLY EXECUTED.

CHIEF JUSTICE: SO WITH THAT , THE GOVERNOR WOULD BE THE ONLY PROPER
PERSON THAT THE LEGISLATURE COULD GIVE THIS SUPER APPELLATE POWEROF
REVIEW TO.

I WOULD ARGUE SOMEWHAT WITH YOUR CHARACTERIZATION THAT THIS IS A
SUPER APPELLATE POWER. IN POINT OF FACT , YOUR HONOR, THIS IS THE
OPPORTUNITY FOR THE GOVERNOR TO RAISE THE DUE PROCESS QUESTIONS ON
BEHALF OF TERRI SCHIAVO , THAT THE ALLEGATION HERE IS THAT TERRI
SCHIAVO WAS DENIED DUE PROCESS , IN THE PROCEEDINGS BELOW .

CHIEF JUSTICE: BUT IF THE GOVERNOR HAD TRIED TO INTERVENE IN THE
ONGOING PROCEEDINGS AND RAISED SOME QUESTIONS AS AN INTEREST TED
PARTY , AS T O WHETHER TERRI SCHIAVO 'S DUE PROCESS RIGHTS HAD BEEN
INTERFERED WITH, WE WOULD BE IN A DIFFERENT SITUATION.WHAT WE ARE
HERE WITH IS THE ISSUE OF WHETHER THIS LAW I S FACIALLY
UNCONSTITUTIONAL , BY GIVING THE GOVERNOR THE POWER TO ISSUE THIS ONE-
TIME STAY BUT IT IS NOT REQUIRED TO DO SO , LIFT THE STAY ATANY
TIME , MAY DO SO , AND MAY REVOKE THE STAY , ALL WITHOUT ANY
STANDARDS .

WELL , YOUR HONOR , THIS IS THE PROBLEM THAT I HAVE WITH THAT
PARTICULAR ARGUMENT , ISTHAT THE , THIS LAW DOES NOT MAKE ANY SENSE ,
UNLESS IT IS READ IN PARI MATERIA , WITH CHAPTER 765 AND CHAPTER 744.
IN FACT WE WOULD ARGUE THAT , IN POINT OF FACT THAT CONSTITUTIONALLY,
IN ORDER TO GIVE PEOPLE WITH SEVERE DISABILITIES THE RIGHT TO
QUESTION THE ADEQUACY O F THEIR REPRESENTATION BELOW , YOU HAVE TO
READ THESE STATUTES IN PERRY MATERIA.

IT IS IN PARI MATERIA .

JUSTICE CANTERO : IT IS NOT DESIGNED TO B E ADDED TO CHAPTER 765, IS
IT?

NOT ADDED TO CHAPTER 765. IT IS ON ITS FACE .

JUSTICE CANTERO. IS IT ADDITIONAL LEGISLATION?

I THINK AT THIS TIME IT WAS DONE QUICKLY.

JUSTICE CANTERO : DID THE LEGISLATURE AMEND CHAPTER 765 TO ADD A NEW
SECTION , WHICH IS THIS LAW?

I THINK YOU SHOULD READ IT THAT WAY , YES, BUT IT IS NOT ON THE FACE
THOUGH .

JUSTICE CANTERO : I AM ASKING IF THE LEGISLATURE SAID IT WAS AMENDING
CHAPTER 765 OR ANY OTHER NEW CHAPTER , BY EFFECTING THE LEGISLATION.

NO , YOUR HONOR , BUT WHAT IT PROVIDES IS TIED VERY CLEARLY TO 744
AND 765.

JUSTICE CANTERO : IS THERE ANY OTHER CASE BEFORE THIS COURT IN WHICH
WE HAVE READ INTO AN ACT THAT IT AMENDS THE CHAPTER OF THE FLORIDA
LAWS , WHEN IT DOESN'T SPECIFICALLY SAY SO?

YOUR HONOR , THIS COURT HAS SAID INFERRING YOU SON VERSUS STATE AND
IN OTHER CASES, THAT WHEN THE FACE OF THE STATUTE SHOWS THAT IT IS
CLEARLY RELATED TO OTHERSTATUTES , IT SHOULD BE READ IN PARI MATERIA
WITH THEM. IF IT IS CLEAR ON ITS FACE THAT IT CAN STAND ALONE , AND
OUR ARGUMENT IS THAT IT SIMPLY CANNOT STAND ALONE.

CHIEF JUSTICE: IN TERMSOF THE PURPOSE OF LOOKING AT THIS LAW, AND I
AM AM NOT SURE, WHEN WE GET INTO SEPARATION OF POWERS WHETHER THAT IS
THE RELEVANT INQUIRY , BUT COULD YOU THEN ADDRESS, BECAUSE I KNOW THE
WHOLE ARGUMENT IS THIS IS GIVING THIS PROTECTION. WHAT , WHERE THE 15-
DAY EXPIRATION DATE , IN OTHER WORDS , AN IDEA THAT WE AREGOING TO
PROTECT A WHOLE CLASS OF DISABLED INDIVIDUALS , SEVERELY DISABLED
INDIVIDUALS , WHO ALREADY HAVE BEEN FOUND TO BE IN A PERSISTENT
VEGETATIVE STATE, WHO ALREADY HAVE HAD HYDRATION WITHDRAWN , AND ,
BUT IT ONLY LASTS FOR 15 DAYS?

WELL , YOUR HONOR , GIVEN THE NATURE OF THE , OF WHAT WAS GOING ON,
NOT ONLY IN THIS CASE BUT IN ALL CASES IN WHICH NUTRITION AND
HYDRATION IS WITHDRAWN , THERE IS A TEMPORAL IMPERATIVE THAT THERE BE
AN ACTION BEFORE ALL THE CONSTITUTIONAL RIGHTS TO DUE PROCESS , EQUAL
PROTECTION , AND PRIVACY ARE LOST .

JUSTICE QUINCE : ARE THERE ANY OTHER PLACES IN THEFLORIDA STATUTE,
WHERE THE GOVERNOR HAS THIS KIND OF POWER TO STAY PROCEEDINGS?

WELL , YOUR HONOR , ACTUALLY THE GOVERNOR DOES HAVE THE POWER IN
DEATH CASES, T O STAY PROCEEDINGS .

JUSTICE QUINCE : YOU ARE TALKING ABOUT CHAPTER 92322.

YES, THE CLEM CHAPTER 922.

YES, THE CLEMENCY POWER .

JUSTICE QUINCE : AND IN CHAPTER 922 , AREN'T THEIR PROCEDURES THAT
THE GOVERNOR HAS T O ABIDE BY , IF HE ENTERS A A STAY?

YES , YOUR HONOR , AND WE SAY THAT CHAPTER 744 AND 765 PROVIDE THE
STANDARDS , BECAUSE THE GOVERNOR MAKES A DISCRETIONARY FINDING
ABOUTWHETHER OR NOT HE FEELS PROBABLE CAUSE HAS BEEN MADE TO PUT A
STAY I N .

JUSTICE QUINCE : UNDER THIS ACT, WHAT IS THE GOVERNOR REQUIRED TO DO?
AS I READ IT, THE GOVERNOR ISN'T REALLY REQUIRED TO DO ANYTHING. THE
STATE COULD STAY INDEFINITELY.

WELL , YOUR HONOR , AGAIN , THAT IS THE IMPORTANCE OF READING THIS,
IN LIGHT OF CHAPTER 765 AND CHAPTER 744 , BECAUSE THE GOVERNOR
TAKES , HE GOES AND HE ASKS THE CIRCUIT COURT FOR A GUARDIAN AD
LITEM . THEY WADE FOR THE GUARDIAN AD LITEM TO COME BACK WITH THE
REPORT. HE REPORTS BACK. THIS CASE HAS TO BE SEEN, IN LIGHT OF THE
ONGOING GUARDIANSHIP JURISDICTION OF THE CIRCUIT COURT I AM SORRY.
JUSTICE WELLS.

JUSTICE WELLS : LET ME GETBACK TO , ISN'T THE CARDINAL PRINCIPLE OF
SEPARATION OF POWERS, SET FORTH BY, IN THE UNITED STATES SUPREME
COURT , CASE , THIS BEN THRIFT CASE , WHICH SAYS THAT A LEGISLATURE ,
WITHOUT EXCEEDING ITS PROVINCE, CANNOT REVERSE A DETERMINATION , ONCE
MADE IN A PARTICULAR CASE , THOUGH IT MAY PRESCRIBE A NEW RULE FOR
FUTURE CASES. AND ISN'T WHAT, IN REALITY , WHEN THIS IS ALL BOILED
DOWN TO, THE LEGISLATURE STEPPEDIN HERE AND REVERSED A DECISION THAT
WAS FINAL IN A SPECIFIC CASE?

NO , YOUR HONOR, IT DIDN'T H IN FACT, THE FACE OF THE STATUTE MAKES
IT VERY CLEAR THAT THE LEGISLATURE PROVIDED A RULE , A PROSPECTIVE
RULE O F PROCEDURE, THAT WOULD TAKE PLACE AFTER THE MANDATE WAS
CARRIED OUT. IT DID NOT , LIKE IN PLOAUT , GO BACK AND ISSUE A RULE
THAT WAS IN PLACE. THE MANDATE WAS CARRIED OUT , AND WHAT IT DID WAS
ENACT A PROCEDURAL RULE , THE PROCEDURAL PROS ES WAS GOING PROCESS
THAT WAS GOING FORWARD THAT DID NOTHING TO EMPOWER THE COURT.

CAN WE EXPLORE THE PARAMETERS FOR YOUR ARGUMENT , AND CERTAINLY WE
HAVE GOT A SET OF FACTS THAT WE ARE DEALING WITH HERE, BUT WOULD THE
LEGISLATURE HAVE THE POWER TO DELEGATE TO THE GOVERNOR, THE ABILITY
TO SET ASIDE ANY CIVIL JUDGMENT , ON THE BASIS OF THE GOVERNOR'S
VIEW , THAT DID NOT MEET DUE PROCESS REQUIREMENTS ? A CIVIL MONETARY
DAMAGES , CASES INVOLVING FAMILY LAW , THAT THE JUDGE DID NOT
ADEQUATELY PROTECT THE CHILDREN I N THIS, THE WAY THAT CUSTODY WAS
HANDLED. WOULD YOU EXPLORE FOR US, THE PARAMETERS . I MEAN, WHAT ARE
WE OPENINGUP HERE, IF WE START TALKING ABOUT THIS? HOW BROAD IS THIS
O R HOW NARROW IS IT?

ACTUALLY, YOUR HONOR, I THINK THIS IS A VERY NARROW PRINCIPLE,
BECAUSE WHAT WE ARE DEALING WITH HERE IS THE FULL IMPLICATIONS OF THE
BROWNING DECISION, WHERE THIS COURT HELD THAT , AN INCOMPETENT PERSON
HAS THE SAME RIGHTS THAT A COMPETENT PERSON HAS , AND EVENTUALLY THIS
CASE WAS GOING TO HAVE TO COME UP , BECAUSE SOMEBODY , AND IF IT IS
NOT GOING TO BE THE GOVERNOR , AND I THINK IT IS A RATIONAL CHOICE
FOR THE LEGISLATURE TO MAKE , TO SAYTHAT THE GOVERNOR CAN STAND IN
THIS PERSON'S SHOES AND ASSURE AND TO RAISE THEQUESTIONS , WAS THERE
ADEQUATE REPRESENTATION IN THE COURT BELOW .

CHIEF JUSTICE: THE ACTDOES NOT EVEN REQUIRE THE GOVERNOR TO TAKE INTO
ACCOUNT THE PATIENT'S WISHES , WHICH YOU WOULD AGREE THAT,WHAT THE
UNDERLYING LITIGATION WAS , THAT WENT OVER A SIX-YEAR PERIOD, WAS TO
DETERMINE WHAT TERRI SCHIAVO 'S WISHES WOULD HAVE BEEN , I F SHE WERE
IN A POSITION TO ASSERT THEM , ATTHE TIME THAT THE FINAL JUDGMENT WAS
ENTERED. DO YOU AGREE WITH THAT , THAT WE ARE NOT LOOKING AT WHAT IS
IN THE BEST INTEREST OF AN ADULT , BUT WHAT IS , WOULD BE THEIR
WISHES. DO YOU AGREE WITH THAT?

WELL , YOUR HONOR , THE GOVERNOR MR. CHIEF JUSTICE

THAT IS GOVERNOR :

CHIEF JUSTICE: THAT IS WHAT BROWNING SAYS?

YES, YOUR HONOR, THE GOVERNOR IS SWORN TO UPHOLD THIS COURT'S RULING
IN BROWNING AND CHAPTER 765 , AND MUST MAKE SURE THAT TERRI 'S RIGHTS
ARE PROTECTED .

CHIEF JUSTICE: WHERE IS THAT STATED WITHIN THE CONFINES OF THE LAW
THAT WAS ENACTED BY THE LEGISLATURE , AND THAT GETS ME BACK TO THE
ISSUE OF UNFETTERED DISCRETION. THERE IS NO STANDARDS NEWYORK CITY
REQUIREMENT THAT STANDARDS BE PROMULGATED . THERE IS NO LENGTH OF
TIME THAT THE STAY REMAINS IN EFFECT , AND ESSENTIALLY , THERE IS NO
INDIVIDUAL OR ENTTY THAT CAN OVERRULE THAT STAY NO INDIVIDUAL OR
ENTITY THAT CAN OVERRULE THAT STAY .

YOUR HONOR , THIS IS WHEREWE WOULD ARGUE THE CONSTITUTIONAL READING O
F PARI MATERIA , WITHIN 765, BECAUSE THAT DOES PROVIDE THE STANDARDS.

CHIEF JUSTICE: BUT 765 IS THE STANDARD THAT WASFOLLOWED, THAT WAS
ENACTED BY THE LEGISLATURE , THAT WAS NOT AMENDED I N THE LAST
LEGISLATIVE SESSION, IT THAT GIVES A VERY , VERY SUBSTANTIAL
PROCEDURE , WHEN INDIVIDUALS WANT TO CHALLENGE THE DECISION OF A
PROXY. AND THERE HAS BEEN NO ALLEGATION THAT THAT PROCEDURE WAS NOT
SCRUPULOUS LY ADHERED TO IN THE CASE OF TERRI SCHIAVO .

BUT , YOUR HONOR , IN THIS CASE, TERRI SCHIAVO 'S PROXY WAS THE
JUDGE, AND THE DIFFICULTY WITH THE , WITH THAT PROCEDURE , IS THAT
TERRI SCHIAVO IS NOW THE GOVERNOR AND TERRI SCHIAVO , WHO I S
STANDING IN HER SHOES UNDER THE STATUTE, IS FORCED TO LITIGATE
AGAINST THE JUDGE, WHICH THIS COURT SAID IN TW, IN FOOTNOTE THREE, IS
ABSOLUTELY INTOLERABLE , AS A MATTER OF DID DUE PROCESS , SO THAT THE
AS A MATTER OF DUE PROCESS , SO THAT THIS IS REALLY WHERE THOSE
STATUTES FIT TOGETHER . I KNOW I AM INTO M Y REBUTTAL TIME. THANK
YOU , YOUR HONOR .

CHIEF JUSTICE: THANK YOU VERY MUCH. AND MR . GOULD .

FELOS .

JUSTICE CANTERO : MR . FELOS, COULD YOU FOLLOW-UPWITH THAT RESPONSE ,
BECAUSE IT DOESN'T ADDRESS THE PROXYAND THE PROXY MAKING THE
DECISION. COULD YOU ADDRESS THE ARGUMENT THAT, IN THIS CASE THE JUDGE
BECAME THE PROXY ?

JUSTICE ANSTEAD : COULD YOU FIRST INTRODUCE YOURSELF , THOUGH, AND
TELL US WHO YOU ARE REPRESENTING. TIME GEORGE FELOS , COUNSEL FOR
MICHAEL SCHIAVO , H ERE THIS MORNING WITH CO-COUNSEL MARSHAL RANDALL,
THE DIRECTOR OF THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA AND
ALSO COOPERATING COUNSEL WITH THE FLORIDA ACLU , AND ON BEHALF OF MY
CLIENT, WE DID WANT TO THANK THE COURT FOR ACCEPTING THE BYPASS
CERTIFICATION AND CONSIDERING EXPEDITED CONSIDERATION OF THIS CASE ,
AND IN ANSWER TO YOUR QUESTION, IT SEEMS TO ME THAT, IF YOU READ THE
BRIEFS TO INVOKE THIS COURT'S DISCRETIONARY JURISDICTION , IN SCHIAVO
ONE , THESE ARE THE QUESTIONS THAT WE ARGUED. THOSE WERE THE
ARGUMENTS OF TERRI 'S PARENTS, IN SEEKING REVIEW OF THE INITIAL
SCHIAVO ONE DECISION. OR THE DUE PROCESS RIGHTS OF THE WARD AFFECTED
BY THE TRIAL JUDGE HAVING A , IN ESSENCE , ACTING AS A PROXY, AND
OBVIOUSLY THIS COURT DIDN'T THINK SO , THREE YEARSAGO , B Y ELECTING
NOT TO TAKE ITS DISCRETIONARY JURISDICTION, AND I JUST WANT T O
HIGHLIGHT, IN ESSENCE WHAT THE GOVERNOR I S TRYING TO DO IN THIS
CASE , IS RELITIGATE AND FORCE A READJUDICATION O F TERRI SCHIAVO 'S
RIGHTS , WHICH HAVE ALREADY BEEN FULLY AND FINALLY LITIGATED IN THE
COURTS OF THE STATE .

CHIEF JUSTICE: THE PROCEDURE THAT WAS FOLLOWED WAS THE PROCEDURE AS
SET FORTH IN BROWNING AND THEN SUBSEQUENTLY PUT INTO STATUTORY FORMAT
LIE THE LEGISLATURE , WHICH -FORMAT , BY THE LEGISLATURE, WHICH
ANTICIPATES THAT, IF THEREIS A DISPUTE BETWEEN THE PARTIES THAT, THE
JUDGE WOULD SET FORTH A DECISION, BUT PROSPECTIVELY, THE LEGISLATURE
DETERMINED THAT THERE SHOULD BE A PROCEDURE THAT, SAY , TAKES THE
INITIAL ASPECT OF THIS VERY , VERY PRIVATE DECISION , OUT OF
THECOURT , AND STARTS WITH SOME ADMINISTRATIVE PROCESS , AND REQUIRES
THERE BE A GUARDIAN AD LITEM APPOINTED FOR AN INCOMPETENT ADULT.
WOULD YOU SEE ANY CONSTITUTIONAL INFIRMITY IN SUCH AN ACT , AND HOW
DOES THIS, WHAT WE HAVE IN FRONT OF US , DIFFER FROM THAT?

YES , YOUR HONOR. I WOULD SEE CONSTITUTIONAL INFIRMITY, FOR A NUMBER
OF REASONS. FIRST OFF , FROM THE ASPECT OF THE CONSTITUTIONAL RIGHTTO
PRIVACY HERE , THE VIOLATION HERE , IS TAKING FROM THE PATIENT AND
GIVING TO THE STATE , THE POWER TO MAKE MEDICAL TREATMENT CHOICES ,
AND IF YOU ARE CONTEMPLATING A PROCEDURE IN WHICH THE CURRENT FORMAT
OF HAVING A GUARDIAN , A SPOUSE , AN ADULT CHILD , CLOSE FAMILY
MEMBERS , MAKE A DECISION FOR AN INCAPACITATED PATIENT , AND YOU
REMOVE THAT , AND GIVE THAT DECISION-MAKING TO THE STATE , EVEN IF IT
IS IN THE CONTEXT OF A LEGISLATIVE SCHEME, YES , I THINK THERE ARE
PROBLEMS .

CHIEF JUSTICE: BUT ISN'T THAT WHAT WE DO WITH THE DEPARTMENT OF
CHILDREN AND FAMILIES? IN OTHER WORDS, WHEN WE ARE IN A SITUATION
WHERE WE ARE CONCERNED WHETHER THE RIGHTS OF AN INDIVIDUAL WHO CANNOT
EXPRESS HIMSELF O R HERSELF, EITHER BY MINORITY OR B Y INCOMPETENCY,
THE IDEA OF HAVING ADDITIONAL PROCEDURES TO MAKE SURE THAT THE
STATE'S INTEREST IN PRESERVING LIFE , IS HONORED , AND THAT IS, THAT
IS THE NORM , WHY WOULDN'T A PROCEDURE LIKE THAT BE APPROPRIATE , AND
ISN'T THAT WHAT THEY ARE TRYING TO DO , MAYBE BE LATEEDLY , IN THIS
SITUATION ?

YOUR HONOR, I WOULD DISAGREE THAT THAT IS WHAT THEY ARE TRYING TO DO
BE LATELY . IT IS OBVIOUS HERE THAT , THE INTENT OF THE
LEGISLATUREHERE WAS TO OVERTURN A FINAL JUDGMENT OF A COURT OF THIS
STATE THAT THEY WERE PARTICULARLY DISPLEASED WITH, BUT GETTING BACK
TO YOUR QUESTION, YOUR HONOR , A GUARDIAN IS ALREADY APPOINTED UNDER
CHAPTER 765 , AND WHEN YOU ASK , IF YOU ASKCAN WE TAKE AN
ADMINISTRATIVE , AN ADMINISTRATION OF A PATIENT'S
CONSTITUTIONALRIGHTS OR DISPUTE AND TAKE IT OUT OF THE COURT SYSTEM
INTO ANOTHER FORUM , I GUESSI WOULD WANT TO KNOW WHAT TYPE OF FORUM
THERE IS AND WHO THE DECISION-MAKER IS. YOU KNOW, YOU HAVE TO
REMEMBER THESE ARE INTENSELY PERSONAL AND PRIVATE RIGHTS WE ARE
TALKING ABOUT HERE .

JUSTICE WELLS : LET ME ASKYOU , YOUR OPPONENTS MAKE THE POINT THAT WE
ARE NOT REALLY , THOUGH, TALKING ABOUT A JUDGMENT WHICH WAS FINAL ,
SINCE THIS ISSUE IN THIS GUARDIANSHIP , IS NOT FINAL, AS LONG AS MS.
SCHIAVO IS STILL ALIVE. NOW , WHAT IS YOUR ANSWER TO THAT , THAT THIS
IS ALWAYS A PROSPECTIVE TYPE OF SITUATION?

YOUR HONOR , THIS IS A FINAL JUDGMENT FOR A NUMBER OF REASONS. NUMBER
ONE , IT WAS A FINAL STATEMENT OR FINAL WORD OF THE COURT SYSTEM OF
THE STATE OF FLORIDA . IT WAS ACKNOWLEDGED BY THE COURT OF APPEAL
MANY TIMES , AS A FINAL JUDGMENT . ALSO APPEALED AS A FINAL JUDGMENT.
BUT THE FACT , YOUR HONOR , THAT UNDER OUR SYSTEM O F JUSTICE UNDER
THE RULES OF PROCEDURE , A FINAL JUDGMENT CAN BE VACATED UNDER
CERTAINGROUNDS AND THIS GROUND AND THE PURPORTED GROUNDS HERE IS RULE
1.540-B-5 , THE FACT THAT A FINAL JUDGMENT COULD BE VACATED IN THE
FUTURE , DOESN'T MAKE IT ANY LESS FINAL FOR SEPARATION OF POWERS. TO
FOLLOW THAT LOGIC, YOURHONOR , EVERY CIVIL JUDGMENT IN THIS STATE
WOULD NO LONGER BE FINAL AND SUBJECT TO LEGISLATIVE RESCINDMENT ,
BECAUSE IT COULD BE VACATED , POTENTIALLY VACATED UNDER RULE 1.540-B-
5.

DID THE GOVERNOR FILE A MOTION

JUSTICE CANTERO : COULD THE GOVERNOR FILE A MOTION UNDER RULE 1.540
RIGHT NOW , SAYING THE CIRCUMSTANCES HAVE CHANGED OR THERE IS
NEWEVIDENCE?

YOUR HONOR , I DON'T BELIEVE SO. I BELIEVE THAT 1.540-B-5 , IS
CONCERNED AND PERTAINS TO PARTIES IN THE CASE , BUT I , ALSO , DID ,
BECAUSE IT IS A VERY IMPORTANT POINT AS TO WHETHER THIS IS A FINAL
JUDGMENT, BECAUSE THAT TRIGGERS THE SEPARATION OF POWERS ANALYSIS ,
YOUR HONOR , YOUR HONOR BROUGHT UP THE ANALOGY OF A CHILD CUSTODY
CASE. IT IS VERY TRUE THAT, IN A FAMILY LAW SITUATION , WHEN A JUDGE
AWARDS A CUSTODY OF A MINOR CHILD TO ONE PARENT , THAT BECOMES A
FINAL JUDGMENT . IT CAN BE APPEALED , BUT THE TRIAL COURT OR THE
FAMILY LAW COURT RETAINS JURISDICTION OVER THAT CASE , OVER THAT
CHILD , UNTIL THE CHILD REACHES EMANCIPATION , AND UNDER THAT
THEORY , BECAUSE THE TRIAL COURT COULD ADDRESS THE CUSTODY ISSUE AT
SOME TIME IN THE FUTURE , IF WE ARE SAYING THAT IS NOT A FINAL
JUDGMENT , THEN THE SEPARATION OF POWERS PROTECTION, THE FIREWALL OF
SEPARATION OF POWERS, IS ERADICATED IN FAMILY LAW CASES, AND THAT IS
CERTAINLY NOT THE LAW OF THIS STATE .

JUSTICE CANTERO : CAN YOU ADDRESS THE GOVERNOR'S ARGUMENT OR
COUNTERARGUMENT TO THAT , THAT HE IS NOT BOUND BY THAT , IF IT IS A
JUDGMENT, HE IS NOT BOUND BY THAT JUDGMENT BECAUSE HE WASN'T A PARTY
TO THAT PROCEEDING AND THEREFORE COLLATERAL ESTOPPEL OR RACE JUDICATA
PRINCIPLES DO NOT HAVE TO APPLY TO HIM .

IT I S A RED HERRING , YOUR HONOR , BECAUSE THE FACT THAT HE WAS NOT
A PARTY TO THE JUDGMENT, DOES NOT ALTER THEFACT THAT THE JUDGMENT WAS
ENTERED, AND IF WE FOLLOW THAT LOGIC , WELL , THE GOVERNOR FOR
SEPARATION OR THE LEGISLATURE CAN RESCIND JUDICIAL JUDGMENTS , TO
WHICH THE LEGISLATURE O R GOVERNOR WERE NOT A PARTY, WELL , THEN, THE
VAST MAJORITY OF JUDGMENTS WOULD BE SUBJECT TO LEGISLATIVE
RESCINDMENT .

JUSTICE QUINCE : IF THEGOVERNOR CANNOT INTERVENE , BASED O N RULE
1.540 , ISTHERE ANY PROCEDURE WOULDWHICH THE GOVERNOR COULD, IN FACT,
HAVE INTERVENED IN THIS PROCEEDING?

I DON'T BELIEVE SO, YOUR HONOR , BUT THE STATE'S INTERESTS ARE
PROTECTED IN THESE CASES. IF YOU READ BROWNING , IF YOU READ THE
DUBRIEL DECISION , THE ONES DECISION , THIS COURT WAS VERY CLEAR T O
SAYAND IT AROSE IN THE CONTEXTOF A HEALTH CARE PROVIDER. IF A HEALTH
CARE PROVIDER DISAGREES WITH THE PATIENT'S MEDICAL TREATMENT CHOICE ,
DO THEY HAVE STANDING TO CONTEST IT IN COURT? THIS COURT SAID NO,
WHAT THEHEALTH CARE PROVIDER WOULD HAVE TO DO IS GO TO THE STATE
ATTORNEY AND GIVE THIS INFORMATION TO THE STATEATTORNEY, AND IT WOULD
B E UP TO THE STATE ATTORNEY TO DECIDE WHETHER T O INTERVENEIN A
PARTICULAR CASE. SO IT IS NOT TO SAY THAT THE STATE'S INTERESTS IN
PRESERVING LIFE OR WHATEVER INTERESTS THEY MIGHT ASSERT, CANNOT BE
ADDRESSED, BUT NOTBY THE GOVERNOR .

JUSTICE CANTERO : CAN I ASK A QUESTION , IN THE SECOND DCA'S OPINION
OF JULY '01 , IT REFERS SPECIFICALLY TO THE ORDER IN THE TERMS OF A
MANDATORY INJUNCTION AND NOT AS A FINAL JUDGMENT, ANDIT SAYS UNTIL
THE LIFE PROLONGING PROCEDURES ARE DISCONTINUED, SUCH AN ORDER IS
ENTIRELY EXECUTOR I AND AWARDED T O THE GUARDIAN TO BE UNDER THE
JURISDICTION AND SUPERVISION OF THE GUARD JAN SHIP GUARDIANSHIP
COURT , AND IT I S SUBJECT TO RECALL. ADDRESS THAT IN FINALITY .

YOUR HONOR , IN THE SECOND DISTRICT OPINION, IT SPECIFICALLY REFERS
TO THE ORDER OF THE GUARDIANSHIP AS A FINAL ORDER , AND THE SECOND
DISTRICT ALSO SAID THE PROCEDURE BY WHICH THAT ORDER COULD BE
REOPENED , IS THE 1.540-B-5 PROCEDURE, AND I THINK IT IS ABSOLUTELY
EXTRAORDINARY FOR THE GOVERNOR TO ARGUE THAT THE LEGISLATURE , IN 18
HOURS AND THE GOVERNOR IN A MATTER OF HOURS , SOMEHOW POSESSES SOME
INHERENT WISDOM IN , REGARDING THE MATTERS OF TERRI SCHIAVO , THAT
COULD NOT HAVE BEEN ASCERTAINED BY THE JUSTICES OF THIS STATE IN OVER
A SIX -YEAR PERIOD , AND

JUSTICE WELLS : LET'S APPROACH THAT.ARE YOU SUGGESTING

JUSTICE LEWIS : LET'S ADDRESS THAT . WE HAVE NUMEROUS CHILDREN IN
THIS STATE THAT CANNOT MAKE DECISIONS FOR THEMSELVES. ARE YOU
SUGGESTING THAT THE LEGISLATURE CANNOT COME IN AND PLACE SAFEGUARDS
TO PROTECT THE WELL-BEING AND THE VIRTUAL LIFE OF THESE DISABLED
CHILDREN?

ABSOLUTELY NOT, BUT TERRI SCHIAVO , TERRI SCHIAVO WAS A COMPETENT
ADULT, WHO EXPRESSED MEDICAL TREATMENT CHOICES .

JUSTICE LEWIS : YOU ARE GOING INTO PROCEDURE. ARE YOU SUGGESTING THAT
THE LEGISLATURE COULD NOT PROHIBIT THIS KIND OF PROCEDURE , THAT YOU
MUST HAVE SOMETHING IN WRITING , YOU MUST HAVE A PROCEDURE OTHER THAN
SOMEONE'S FRIEND COMING IN AND EXPRESSING WHAT THIS EVENING THE
PERSON WANTS? WE DIDN'T HAVE THE TESTIMONYOF MS. SCHIAVO IN THIS
CASE , DID WE? IT WAS ALL TESTIMONY OF OTHER INDIVIDUALS.

OF OTHER INDIVIDUALS.

JUSTICE LEWIS : AND THAT WOULD NOT ALWAYS BE THE CASE , WOULD IT
NOT , WITH INCOMPETENCE OF DISABLED CHILDREN IN THIS STATE?

YOUR HONOR, IF THE LEGISLATURE AMENDED CHAPTER 765 AND SAID WE ARE
NOT GOING TO PERMIT REMOVAL OF ARTIFICIAL LIFE-SUPPORT , UNLESS
SOMEBODY HAS A WRITTEN ADVANCE DIRECTIVE, NO, THAT LAW WOULD BE
UNCONSTITUTIONAL, BECAUSE THIS COURT HAS DECLARED, IN THE BROWNING
CASE THAT , IN ORDER T O , IN ORDER TO RECOGNIZE AND IMPLEMENT AN
INDIVIDUAL 'S RIGHT OF PRIVACY , ORAL DECLARATIONS ARE SUFFICIENT TO
ESTABLISH, AS LONG AS THEY ARE BY CLEAR AND CONVINCING EVIDENCE, THE
INTENT O F THE PATIENT, SO SUCH A LEGISLATIVE ENACTMENT IN THAT
CASE , IN MY OPINION WOULD BE UNCONSTITUTIONAL .

JUSTICE LEWIS : SO YOUR ARGUMENT IS THE LEGISLATURE WOULD ACT
CONTRARY TO THE WAY A JUDICIAL SYSTEM HAS INTERPRETED A PRIVACY
RIGHT. THAT IS THE FUNDAMENTAL BASIS OF YOUR ARGUMENT THEN.

I WOULD SAY , YOUR HONOR , THAT THE BROWNING CASE PROVIDES THE
MINIMUM RIGHT OF PRIVACY THAT A PATIENT IS ENTITLED TO. AND THE
LEGISLATURE MAY CERTAINLY LEGISLATE I N THE FIELD , TO PROTECT THE
PUBLIC AND TO MAKE SURE THAT THE RIGHT OF PRIVACY IS HE HAVE HE CAN
WAITED , BUT IS EFFECTUATE!!ED , BUT THEY CAN'T FALL BELOW THAT
MINIMUM.

CHIEF JUSTICE: IF YOU LOOK AT WHAT THE SUPREME COURT AND THE JURY DID
IN THE CRUSE CASE, THEY DECIDED THAT THE TESTIMONY OF A NEIGHBOR WAS
NOT CLEAR AND CONVINCING EVIDENCE OF THE PERSON'S WISHES , SO I
MEAN , IF WE ARE , AND PROBABLY WE MAY BE GETTING A LITTLE FAR AFIELD
OF WHAT WE HAVE TO DECIDE IN THIS CASE , BUT , BECAUSE THE ISSUE
ISN'T WHETHER THE LEGISLATURE COULD ENACT SOMETHING MUCH MORE
COMPREHENSIVE , TO BETTER ADDRESS THIS TYPE OF SITUATION, WHICH IS ,
YOU KNOW , TRAGIC FOR EVERYBODY, SO COULD YOU GET BACK TO THE ISSUE
ON , WITH THE SEPARATION O F POWERS , COULD THE LEGISLATURE, IF THIS
WASN'T TERRI SCHIAVO , WE ARE JUST LOOKING AT THE FACIAL CHALLENGE ,
WHAT IS WRONG WITH WHAT THE LEGISLATURE DID, IN THIS CASE , AS FAR AS
GIVING THIS POWER TO STAY FOR ONE TIME , THE WITHHOLDING O F
HYDRATION , ON A ONE-TIME BASIS?

ASIDE FROM THE INTRUSION INTO THE JUDICIARY , WHICH IS THE SEPARATION
OF POWERS VIOLATION , AS APPLIED TO TERRI SCHIAVO .

CHIEF JUSTICE: THE APPLIED CHALLENGE.

AS A FACIAL CHALLENGE , THERE ARE TWO, THE IMPERMISSIBLE LEGISLATIVE
DELEGATION , AS YOUR HONOR MENTIONED. THERE ARE NO STANDARDS. NOW ,
THE TEST FOR IMPERMISSIBLE DELEGATION OF LEGISLATION IS THIS,
COULDTHE COURT, IN REVIEWING A DECISION , BE ABLE TO ASCERTAIN
WHETHER THE DECISION-MAKER ACTED WITH INDISCRETION OR ABUSED
DISCRETION AND THAT STATUTEFAILS IN THIS WAY, IF THERE WERE JUDICIAL
REVIEW PERMITTED , AND OF COURSE THERE IS NO JUDICIAL REVIEW SO THAT
COULD NEVER OCCUR IN THIS CASE, BUT IF THERE WERE JUDICIAL REVIEW,
HOW WOULD WE EVER KNOW, HOW COULD W E EVEN BEGIN TO MAKE THAT
DETERMINATION , WHEN WE DON'T EVEN KNOW WHAT THE BASIS FORTHE
GOVERNOR'S DECISION IS , BECAUSE HE IS NOT REQUIRED UNDER THIS ACT,
TO TELL US THE BASIS O F HIS DECISION .

JUSTICE CANTERO : WELL , CAN YOU ADDRESS THE GOVERNOR'S ARGUMENTS,
YOUR COUNSEL 'S ARGUMENTS , THATYOU HAVE TO READ THIS ACT IN
CONJUNCTION WITH PARI MATERIA WITH THE ACT IN 765 AND 744 AND THOSE
PROVIDE THE GUIDELINES.

THAT DOCTRINE , YOUR HONOR , ONLY PERTAINS TO SITUATIONS WHERE THERE
IS AMBIGUITY IN THE STATUTE. THIS COURT HELD, IN HOLLY VERSUS ALD ,
THAT VERSUS AULD THAT, IF THERE IS NO FACIAL AMBIGUITY IN THE
STATUTE, THAT THIS COURT CAN'T RESORT TO THAT TYPE OF STATUTORY
INTERPRETATION, SO THAT DOCTRINE DOESN'T APPLYHERE. WE ARE NOT
TALKING ABOUT A N AMBIGUOUS STATUTE THIS. STATUTE IS CRYSTAL
CLEARWHAT IT DOES. IT GIVES THE GOVERNOR UNFETTERED AND ABSOLUTE
AUTHORITY , AND , BUT T O FOLLOW THAT , EVEN IF THERE WERE, EVEN IF
THE GOVERNOR DID TELL US OR COULD B E COMPELLED TO TELL US WHAT THE
BASIS OF HIS DECISION WAS , THERE IS NO STANDARDS TO APPLY. HOW DO WE
KNOW WHETHER THE LEGISLATURE WANTED THE GOVERNOR TO CONSIDER THE COST
BENEFIT ANALYSIS FOR PROVIDING MEDICAL TREATMENT? HOW DO WE KNOW
WHETHER THE LEGISLATURE WANTED THE GOVERNOR TO TAKE INTO ACCOUNT
FAMILY WISHES, RATHER THAN THE WISHES OF THE PATIENT. HOW ARE WE T O
KNOW WHETHER THE LEGISLATURE WANTED THE GOVERNOR TO ACT IN THE BEST
INTEREST OF THE PATIENT , AS OPPOSED TO DETERMINING THE SUBJECTIVE
INTENT OF THE PATIENT .

JUSTICE QUINCE : BASED O N THIS STATUTE, CAN ANYONE LIFT THIS STAY?
CAN THIS STAY B E LIFTED?

NO ONE STANDING HERE.

CHIEF JUSTICE: WAS THERE ANY ATTEMPT TO DO THAT IN THE PROCEEDINGS
BELOW? TO HAVE THE STAY LIFTED, O R WAS IT ONLY AN ATTACK ON THE
CONSTITUTIONALITY ?

ON THE CONSTITUTIONALITY , YOUR HONOR. YOUR HONOR , I DON'T BELIEVE
THE STATUTE PROVIDES ANY MECHANISM, TO HAVE THE GOVERNOR'S DECISION
REVIEWED .

JUSTICE QUINCE : SO WHAT IS THE POINT, THEN , O F THAT PART OF THE
ACT WHICH SAYS THAT YOU, THEN , APPOINT INTA GUARDIAN , WHO APPOINT A
GUARDIAN, WHO REPORTS O R MAKES RECOMMENDATION TO SAY THE GOVERNOR
AND THE COURT?

I BELIEVE THE STATUTE SAYS IT MAKES RECOMMENDATION TO SAY THE
GOVERNOR. IN TERMS OF POWER AND AUTHORITY , THERE IS NO POINT. WE
DON'T KNOW , WE DON'T KNOW WHETHER THE GOVERNOR READ THE REPORT OR
DIDN'T READ THE REPORT OR , IF HE DID READ THE REPORT , TOOK IT INTO
CONSIDERATION OR YOUKNOW, PICKED IT UP AND TOSSED IT AWAY . SO AS FAR
AS THE STATUTE , ITSELF, IT CHANGES NOTHING AS TO THE IMPERMISSIBLE
DELEGATION OF AUTHORITY. BUT I, ALSO, SINCE I ONLY HAVE TWO MINUTES
LIFT LEFT , YOUR HONOR , WANT TWOMINUTES LEFT, YOUR HONOR , WANTED TO
ADDRESS THE FACIAL UNCONSTITUTIONALITY , REGARDING THE RIGHT OF
PRIVACY. AND I TOUCHED ON THIS BEFORE. THE ESSENTIAL ISSUE HERE , IS
WHO IS ENTITLED TO MAKE ADECISION ON A MATTER SO PERSONAL AND PRIVATE
AS WHETHER ONE WOULD WANT ARTIFICIAL LIFE-SUPPORT? DOES THAT POWER
CONSTITUTIONALLY , RESIDE WITH THE PATIENT, OR DOES THAT POWER RESIDE
WITH THE STATE ?

JUSTICE CANTERO : DO YOU AGREE THAT, IF WE HOLD THAT THE STATUTE IS
UNCONSTITUTIONAL, AS A VIOLATION OF SEPARATION POUF POWERS OR AT O F
SEPARATION OF POWERS OR AT LEAST AS APPLIED TO TERRI SCHIAVO, IT IS
UNCONSTITUTIONAL, IT IS NOT GOING TO APPLY TO ANYBODY ELSE, SO BY
HOLDING UNCONSTITUTIONALLY AS IT IS APPLIED , WE ARE REALLY HOLDING
IT UNCONSTITUTIONAL FACIALLY AS WELL , PRACTICALLY SPEAKING. IT IS
NOT GOING TO APPLY TO ANYBODY ELSE, IS IT?

IT IS NOT GOING TO APPLY TO ANOTHER CASE , BUT WE WOULD ASK THIS
COURT SPECIFICALLY TO FIND THAT IT IS UNCONSTITUTIONAL AS APPLIED TO
TERRI SCHIAVO , BECAUSE IT IS A UNLAWFUL INTRUSION INTO JUDICIAL
POWER, FOR THIS REASON, IF THIS COURT ONLY FOUND THE STATUTE FACIAL
LY UNCONSTITUTIONAL, LET'S SAY , FOR IMPROPER DELEGATION OF
LEGISLATIVE AUTHORITY , WE DON'T WANT , AND THOSE NOT T O ADDRESS THE
AS-APPLIED SEPARATION OF POWER ARGUMENT , WE DON'T WANT TO BE HERE A
YEAR FROM NOW , ARGUING THE CONSTITUTIONALITY OR UNCONSTITUTIONALITY
O F TERRI 'S LAW TWO. THIS YOUNG WOMAN HAS A RIGHTTO HAVE HER FINAL
ADJUDICATION HONORED BY THE COURTS OF FLORIDA. THIS UNLAWFUL
INTRUSION INTO THAT RIGHT , SHOULD BE OVERTURNED AND DEFINTIVELY
OVERTURNED, S O HER RIGHT TO PRIVACY CAN BE EFFECTED. THANK YOU.

CHIEF JUSTICE: THANK YOU .

MAY IT PLEASE THE COURT. I AM KEN CONNOR WITH THE FIRM OF WILKES AND
McCUE , AND I , ALONG WITH PROFESSOR DECEMBER STRO DESTROWWITH THE
GOVERNOR , APPEAR WITHIN THIS ACTION .

JUSTICE LEWIS : THE CLASSIFICATION APPLIES TO ONLY ONE PERSON?

JUDGE , THE FACT THAT IT PLAY MAYE APPLY TO ONLY ONE PERSON DOESN'T
MAKE IT A SPECIAL ACT. THERE ARE A NUMBER OF POTENTIAL PEOPLE WHO
COULD FALL WITHIN THE PURVIEW OF THE ACT, IF THEY MEET THE CRITERIA,
THAT IS THEY DIDN'T HAVE AN ADVANCED WRITTEN DIRECTIVE , THEY HAVE
BEEN DEEMED TO BE IN A PERSISTENT VEGETATIVE STATE , NUTRITION AND
HYDRATION ARE BEING WITHHELD AND THE FAMILY HAS A CHALLENGE. IF THEY
MEET THIS CRITERIA , THEY - -

JUSTICE WELLS : THE COURT HAS FOUND THE PATIENT TO BE IN A PERSISTENT
VEGETATIVE STATE , AND THE PATIENT'SFAMILY HAS CHALLENGED THE
WITHHOLDING OF HYDRATION ANNUITY RIGS. YOU ARE NOT ASKING US TOREALLY
HOLD THAT THIS ACT DOESN'T PERTAIN JUST TO TERRI SCHIAVO .

BY THE FACE OF IT, YOUR HONOR, IT DOES APPLY TO MORE THAN JUST
TERRI . TERRI SCHIAVO'S CASE WAS THE TRIGGERING EVENT FOR IT. WE SEE
THAT ALL OF THE TIME,IN THE LEGISLATURE.

JUSTICE WELLS : WE WOULD HAVE TO IGNORE REALITY TO DO THAT , WOULDN'T
W E NOT?

THE FACT , JUDGE, THAT WE HAVE MAY GO AND'S LAW , THE FACT THAT WE
HAVE SPECIFIC SITUATIONS INVOLVING PARTICULAR INDIVIDUALS THAT
TRIGGER THE NEED FOR LEGISLATIVE RELIEF .

JUSTICE WELLS : BUT THESE DON'T INVOLVE PARTICULAR CASES FOR RELIEF.
THAT IS WHERE I AM HAVING TROUBLE WITH THIS ACT. WHEN I READ THIS
ACT , OBJECTIVELY, I CANNOT COME TO THE CONCLUSION THAT IT DOESN'T
PERTAIN TO THIS SINGLE CASE THAT HAS BEEN IN LITIGATION FOR A
DECADE , AND THAT WHAT IS GOING O N HERE , IS THAT THE LEGISLATURE
SETABOUT TO SET ASIDE WHAT THE FINAL JUDGMENT OF THE COURT PERTAINING
TO THAT CASE!

WITHOUT A DOUBT , YOURHONOR , IT DOES APPLY IN THIS PARTICULAR CASE,
TO TERRI SCHIAVO , BECAUSE SHE MET THE CRITERIA. THERE ARE OTHERS
WHO , LIKEWISE, COULD MEET THE CRIES EAR YEAH. CRITERIA. IT DOES
NOT , I RESPECTFULLY SUBMIT , INVOLVE A FINAL REVERSAL OF A JUDGMENT
OF A CIRCUIT COURT , PRECISELY FOR THE REASONS INDICATED BY JUDGE
BELL IN SCHIAVO TWO, WHERE THE COURT MADE THE POINT THAT THESE ORDERS
ARE ENTIRELY EXECUTOR I , AS LONG AS THE - - EXECTORY, AS LONG AS THE
WARD IS ALIVE THEORD ZR SUBJECT T O RECALL AND IS EXECUTIVE IN
NATURE. THE MANDATE OF THE ORDER HADBEEN COMPLIED WITH. THE ORDER WAS
NOT THAT TERRI SCHIAVO SHOULD HAVE NUTRITION AND HYDRATION WITHDRAWN
UNTIL SHE WASDEAD. IT WASN'T LIKE AN ORDER THAT SAID SO-AND-SO SHOULD
B E HANGED BY THE NECK UNTIL SHE IS DEAD.

CHIEF JUSTICE: THE COURT WENT ON AND SPECIFICALLY SAID, BECAUSE THEY
UNDERSTOOD THAT THE CHALLENGE WAS BEING RAISED MORE THAN ONE YEAR
AFTER , AND THEY WERE REALLY TRYING HARD TO MAKE SURE THAT THE
SCHINDLERS HAD SOME OPPORTUNITY TO RAISE THIS NEW CLAIM THAT THERE
MIGHT BE SOME NEW LIFE-SAVING TREATMENT, AND WHAT THECOURT, THEN ,
SAID, IS WE CAUTION , HOWEVER, THAT ANY PROCEEDING TO A CHALLENGE O F
A FINAL ORDER ON THIS BASIS , IS EXTRAORDINARY AND SHOULD NOT BE
FILED MERELY TO DELAY AN ORDER WITH WHICH AN INTEREST TED PARTY
DISAGREES OR TO RETRY AN ADVERSARY PROCEEDING, AND THE MECHANISM THEY
SET UP WAS RULE 1.540-B-5, WHICH IS FOR CHALLENGES TO FINAL
JUDGMENTS , SO WE MUST , YOU KNOW, TO TAKE ONE LINE OUT OF A ONE
OPINION THAT , AND THERE IS A SERIES OF FOUR OPINIONS, REALLY, IS NOT
THECORRECT WAY TO LOOK AT THIS.

WELL , YOUR HONOR , UNQUESTIONABLY, THIS LANGUAGE AROSE IN THE
CONTEXT O F 1.540 CHALLENGE , BUT THE REALITY OF IT IS THAT THAT IS
THE NATURE OF GUARDIANSHIP ORDERS. THEY ARE EXECTORY, UNTIL THE
DISABILITY IS REMOVED .

CHIEF JUSTICE: SO YOU ARE SAYING THAT THERE FOR THEY ARE REVIEWED AS
NONFINAL ORDERS, AND ANY INTERESTED PARTY , YEAR AFTER YEAR , CAN
COME IN AND MAKE CHALLENGES?

NO, MA'AM. WHAT I AM SAYING IS THAT THE COURTS DO NOT POSSESS THE
EXCLUSIVE DOMAIN TO PROTECT THE RIGHTS OF DISABLED PEOPLE AND TO
ENSURE THAT THEIR HEALTH CARE CHOICES ARE RESPECTED AND PROTECTED ,
THAT THERE IS A ROLE FOR THE LEGISLATURE.THERE IS A ROLE FOR THE
GOVERNOR.

CHIEF JUSTICE: ARE WE IGNORING IN THIS LAW, WHICH AGAIN , DIDN'T
BECOME A PART OF THE AMENDMENT TO THE CHAPTER LAW IN THE SESSION THAT
SUCCEEDED THE LAW , WAS A 15-DAY SUNSET. IT APPLIED TO WHOEVER WAS I
N THIS SITUATION FOR 15 DAYS , AND THEN THIS GREAT PROTECTION THAT
THE LEGISLATURE WANTED TO GIVE , EXPIRED , AND HAS NOT BEEN RENEWED .

YOUR HONOR , THAT DEMONSTRATES, I THINK , HOW THIS LAW IN FACT, WAS
NARROWLY TAILORED. THE LEGISLATURE WANTED TO SEE HOW IT WORKED. THEY
HAD AN OPPORTUNITY TO TWEAK IT. MY TIME IS UP, YOUR HONORS. I WOULD
RESPECTFULLY REQUEST THAT THE COURT RECOGNIZETHAT THERE IS A ROLE FOR
THE LEGISLATURE AND THE GOVERNOR IN PROTECTING THE RIGHTS OF THE
DISABLED , AND ENSURE !!ING THAT THEIR HEALTH CARE DECISIONS ARE
RESPECTED AND PROTECTED.THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH. THAT CONCLUDES THE ARGUMENTS. THE
COURT WILL TAKE A SHORT RECESS, BEFORE CALLING THE NEXT CASE , AND WE
WOULD ASK , OUT OF DEFERENCE TO THE PARTIES, THAT, BEFORE THE REST OF
THE COURTROOM MOUNTAINS, THAT THE ATTORNEYS AND THE - - COURTROOM I S
EMPTIED , THAT THE ATTORNEYS AND PARTIES BE ALLOWED TO LEAVE THE
COURTROOM. THANK YOU VERY MUCH.

----- Original Message -----
From: melissa roxanne
To: Gordon W Watts ; Jackie@... ; Joe and Margaret
Juneman ; Linda Kennedy ; Lisa Ruby ; Mary from fla ; Kate Adamson ;
Ron Panzer ; tips@... ; Paul prisonplanetcom
Sent: Tuesday, August 31, 2004 6:31 PM
Subject: FL SUPREME CT. HEARING TRANSCRIPT / VIDEO ON TERRI'S LAW 8-
31-04


Transcript:
http://www.wfsu.org/gavel2gavel/transcript/04-925.htm

Real Video:
http://www.wfsu.org/rafiles/archives/04-925.ram