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The Florida Legislature’s decision to give Gov. Jeb Bush authority to stay a court ruling and order the reattachment of a feeding tube for a brain-damaged woman violates the state constitution and won’t withstand a court challenge, a number of legal experts and lawmakers of both parties said Wednesday. Although the bill, known as “Terri’s Bill,” was narrowly tailored to the Schiavo case, legal experts say it violates the constitution’s separation-of-powers clause, the ban on ex post facto laws and the prohibition against enacting special laws. It also sets a perilous precedent for allowing the governor and Legislature to overturn court rulings they don’t like, they say. On Tuesday, Bush signed an emergency bill allowing him to order that the feeding and hydration tube be reinserted into Terri Schiavo, 39, of St. Petersburg, who has been in a vegetative state since suffering a heart attack and lapsing into a coma in February 1990. After signing the bill, Bush ordered the tube reattached. Legal experts say the Legislature’s action was unprecedented. “This is the first time that I know of that the Legislature has taken the judicial powers away from the judicial branch and given them to the executive branch,” said Dexter Douglass, a veteran constitutional lawyer in Tallahassee who chaired the 1998 Constitutional Revision Commission and served as general counsel to former Gov. Lawton Chiles. Article 2, � III of the Florida Constitution states that the powers of the government should be divided into the legislative, executive and judicial branches. “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein,” the law says. But some observers, including Republican Sen. Alex Villalobos of Miami, say that many Florida legislators do not understand the separation-of-powers concept. “Some members of the Legislature don’t like the courts,” Villalobos, a lawyer, told the Miami Daily Business Review in August. “They don’t like some rulings that struck down legislation and they wanted to take it out of their hide.” Villalobos said he continually had to explain to his colleagues that there are three branches of government — the executive, the legislative and the judicial branches. Since the 1970s, the right of patients and their families to reject care has been upheld many times by courts around the country. Many states, including Florida, have passed laws encouraging advance directives, allowing people to declare their desire not to be kept alive through extraordinary measures. Terri’s Bill reversed the outcome of five years of bitter litigation between Schiavo’s husband, Michael, who claimed that his wife would have preferred dying to being kept alive artificially, and her parents, who argued there was a chance she could recover. A state trial judge in Pinellas County, Circuit Judge George Greer, had ordered that the feeding and hydration tube be removed, after finding that there was clear and convincing evidence that Terri Schiavo would have preferred to die. Although Schiavo had no living will, her husband testified that she had told him during their marriage that she would not want to be kept alive by life support. Under Florida’s Heath Care Advance Directives Law, a patient’s spouse is second in line to make a decision about whether life support should be suspended, after a court-appointed guardian. A patient’s parents are fourth on the list. Any adult children would be third. Florida’s 2nd District Court of Appeal has affirmed Greer’s rulings four times, from its first ruling in January 2001 to its most recent written opinion this past June. In its latest decision, the 2nd DCA reiterated that its unanimous decision to affirm Greer’s ruling was reached after an extensive, heart-wrenching legal review. “We have repeatedly examined the videotapes [of Terry Schiavo], not merely watching short segments but carefully observing the tapes in their entirety,” Chief Judge Chris Altenbernd wrote for the three-judge panel. “We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the court’s decision de novo, we would still affirm it.” In its recent ruling, the 2nd DCA expressed compassion for Schiavo’s family, while reiterating that the trial judge’s obligation was to determine only the wishes of the patient. “The judges on this panel are called upon to make a collective, objective decision concerning a question of law,” Altenbernd wrote. “Each of us, however, has our own family, our own loved ones and our own children.” In watching the videotapes of Schiavo sleeping, moaning and sometimes appearing awake, it’s understandable that her family would want to hold on to faith that one day she could recover, Altenbernd wrote. “But in the end, this case is not about the aspirations that loving parents have for their children,” he said. “It is about Theresa Schiavo’s right to make her own decision, independent of her parents and independent of her husband.” The Florida Supreme Court twice has refused to hear the case. After passage of the bill, one of Michael Schiavo’s attorneys, George Felos, told reporters that the governor and legislators were engaged in an unconstitutional power grab. “The citizens of Florida should be alarmed by what is happening,” Felos said. “What is happening here is a gross and illegal intrusion into the private liberty of citizens. This is not the former Soviet bloc where you don’t have the liberty to control your own body.” Michael Schiavo’s lawyers asked Pinellas-Pasco Circuit Judge Douglas Baird to grant an injunction blocking Bush’s order; Baird refused, asking lawyers to submit written arguments within two weeks. That sets the stage for a new legal fight. The passage of Terri’s Bill followed a flood of public opposition to Judge Greer’s order, and an emotional appeal by Schiavo’s parents. Gov. Bush asked lawmakers to address the matter during a five-day special session he originally called to address economic development. The bill passed the state House of Representatives 73-24 and the state Senate 23-15. It was narrowly tailored to apply only to cases in which the patient left no living will, was in a persistent vegetative state, had nutrition and hydration tubes removed and had family members who challenged the removal. It gave the governor 15 days to issue the stay. The last time the Legislature took on the role of the judiciary was at the turn of the century, when in 1901 it granted Florida railroad and real estate magnet Henry Flagler a divorce, Douglass said. “Flagler got some lobbyists together and got a bunch of money and the Legislature gave him a divorce,” Douglass said. “After that, they changed the law so the Legislature couldn’t do that anymore.” Allowing Gov. Bush to step in after the courts have ruled is essentially enacting an ex post facto law, Douglass said. Ex post facto laws are those that seek to impose new penalties or legal rules for actions that occurred before the enactment of the new law. The new law also violates the constitutional ban on enacting special laws, those enacted for the benefit of a certain individual or group, as opposed to general legislation enacted for the general population. The bill is also a violation of 14th Amendment due process rights to liberty, said Michael Allen, a Stetson University law professor who has studied the case. In 1990, the Florida Supreme Court ruled in Estelle Browning v. Doris Herbert that patients have the right to refuse medical treatment, including artificial nutrition and hydration. The court also upheld a law that said people who can no longer communicate need only have told friends and family of their wishes not to be sustained by life support. “This is a situation in which the court has found by clear and convincing evidence that she would not have wanted to be kept alive,” Allen said. “Having the Legislature stepping in and insisting that she be fed infringes on her right to make that decision.” Judge Baird’s refusal to grant an injunction doesn’t stop Michael Schiavo from proceeding with a lawsuit challenging the constitutionality of the new law, legal experts say. A number of lawmakers expressed outrage over the Legislature’s move to overturn considered court rulings. “The courts have found the person to be in a consistent vegetative state,” Sen. Villalobos, an attorney who voted against the bill, told the St. Petersburg Times. “We’ve been asked to try a case without knowing the facts. The courts have listened to sworn testimony and they have determined — court after court — one way. This bill is unconstitutional.” The Schiavo case reinforces that message that everyone should have a living will, said James Barclay, a partner at Ruden McClosky Smith Schuster & Russell in Tallahassee who is co-chair of Health Law Section of The Florida Bar. “This case screams out for people to have advanced directives and living wills so that the caretakers and people left behind have a clear instruction on what to do,” he said.

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