Here is a link to our local paper that wrote a continuing story.
http://www.orlandosentinel.com/news/local/state/orl-asecschiavo20112003nov20,1,234663.story?coll=orl-news-headlines
Governor requests Schiavo judge out
He took a page from Alice in Wonderland to say the jurist must be pulled off the case.
By Sean Mussenden | Sentinel Staff Writer
Posted November 20, 2003
Gov. Jeb Bush demanded Wednesday that the judge handling the constitutional challenge of "Terri's Law" remove himself from the case, comparing him to the Queen of Hearts in Alice's Adventures in Wonderland.
In legal papers, the governor also asked that a jury reconsider whether Terri Schiavo would have wanted to be kept alive artificially in what doctors have described as a persistent vegetative state.
Terri Schiavo went for six days without food and water last month after her husband, Michael Schiavo, won a court order to remove the feeding tube that has kept her alive for 13 years. Florida lawmakers and Bush intervened, enacting in two days a law that allowed the governor to order that the feeding tube be reinserted.
In their filings Wednesday, Bush's attorneys accused Pinellas County Circuit Judge W. Douglas Baird of a "biased" approach to the case.
Bush's concern
Baird chided Bush last week for failing to file legal arguments defending his decision to restore Terri Schiavo's tube, saying that each day Bush delayed doing so, her constitutional rights presumably were being violated. Baird was careful to say that he was not offering a final judgment in the lawsuit, filed against the governor by Michael Schiavo.
Nonetheless, conservative activist Ken Connor, who is Bush's lead attorney in the case, said Baird needed to be removed because it appeared he had prejudged the matter before fully considering the governor's legal arguments.
Reached Wednesday evening, Baird's secretary said the judge thought it would be inappropriate to comment. Conner said the next step will be for Baird to rule on the motion of whether to remove himself.
In his filing, Connor said the governor viewed Baird's comments in the same light as a trial in the Lewis Carroll story, in which the King and Queen of Hearts sit in judgment of the Knave of Hearts, who's accused of stealing tarts.
"Let the jury consider their verdict," the King said.
"No, no!" said the Queen. "Sentence first -- verdict afterwards." When Alice protests, the Queen yells, "Off with her head!"
A matter of law
In an order issued last week, the judge reminded Bush that courts have repeatedly found that Terri Schiavo made it clear that she would not have wanted to be kept alive artificially. The 39-year-old Pinellas County woman suffered severe brain damage in 1990 after her heart stopped, depriving her brain of oxygen.
Her wishes have been "finally and conclusively established as a matter of law," Baird wrote.
Because Bush was not a party to the earlier lawsuit, Connor argued that what a previous court determined were her wishes should have no bearing in this case. So Wednesday, Bush's attorneys requested a jury be brought into to redetermine Terri Schiavo's wishes.
Michael Allen, a constitutional law professor at Stetson University College of Law, said the request for another examination of her wishes runs counter to standard legal procedure.
"Their findings may have been right, they may have been wrong, but they were a final judgment," he said. "It doesn't matter that the governor was not involved in the earlier case, just as it doesn't matter that you and I weren't involved with the case."
Defending privacy issue
Bush on Wednesday also offered his first constitutional defense of his intervention in the nationally watched right-to-die case.
Michael Schiavo's attorneys, the American Civil Liberties Union of Florida and some constitutional-law experts, argue that Terri's Law violates her right to privacy, which guarantees the right to refuse unwanted medical treatment. They also contend that because it effectively allowed Bush to throw out six years of court proceedings, it also violates the rigid separation of the legislative, executive and judicial branches of government.
But Bush's attorneys argued that the law strengthens Schiavo's right to privacy because it orders an independent guardian to review her case. And, they argued, while Schiavo has that right, it must be balanced against other "compelling state interests," including preserving human life, protecting the rights of disabled people such as herself and protecting the rights of family members.
Terri Schiavo's parents, Mary and Bob Schindler, have waged an international campaign against their son-in-law to keep their daughter alive.
"The disdain the governor has for Florida's privacy right is just astounding," said Howard Simon, executive director of the American Civil Liberties Union of Florida, which has joined Michael Schiavo's lawsuit. "He's saying that the desire of your family members is more important than what you would have wanted."
The ACLU and Michael Schiavo's attorney, George Felos, have repeatedly criticized Bush for what they call attempts to delay this case on technical points. Simon said the request to remove Baird appeared to be another attempt at delay, as did the request for a jury.
"The fact is this case is about whether this law is constitutional or not," Felos told The Associated Press. "I don't think the trial court is going to allow them to reopen six years of litigation."
Connor, in a conference call with reporters, dismissed suggestions that that Terri's Law violated the wall between the branches of government, saying the Legislature passes laws that affect court decisions regularly. For example, he cited a law that allows people behind bars to request DNA testing in closed cases.
"What the Legislature has done here is not novel," Connor said.
But Bruce Winick, who teaches constitutional law at the University of Miami, said the comparison was invalid. He said the DNA law gave a broad class of people the right to another court review, while "Terri's Law" was tailored to overturn a specific court decision.
In a statement, Bush said he was looking forward to proving his case in court.
"We are confident the Florida law protects rather than diminishes individual rights as outlined in the Constitution, and welcome the opportunity to prove that fact in court."