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Several Florida Supreme Court justices grilled Gov. Jeb Bush’s attorneys Tuesday on the constitutionality of a law that gave the governor the power to override a court order and restore food and hydration to a severely brain-damaged woman. During oral arguments in a right-to-die case that has sparked national debate, the justices appeared doubtful that the Florida Legislature had the constitutional authority to intervene in the case of Terri Schiavo, a St. Petersburg woman who has been in a persistent vegetative state since suffering a heart attack 14 years ago. “Isn’t it the cardinal principle of separation of powers that a legislature cannot reverse a court decision once it has been made?” Justice Charles T. Wells asked the governor’s attorneys. “Isn’t this what it all boils down to — that the Legislature stepped in here and reversed a final decision in a specific case?” In Bush v. Schiavo, the justices are reviewing the constitutionality of an emergency bill passed by the Legislature in October, which was dubbed Terri’s Law. The bill gave Bush the authority to order the reattachment of Schiavo’s feeding and hydration tubes six days after they had been removed by court order. Arguing in defense of the governor’s position, Robert Destro, a law professor from Catholic University of America in Washington, D.C., told the justices Tuesday that the law was narrowly tailored to health care cases involving disabled patients who needed an added layer of state protection. “But would the Legislature have the power to give the governor the ability to set aside any civil judgment?” Justice R. Fred Lewis asked. Destro argued that the Legislature essentially amended Florida Chapter 765, which lays out the procedures for appointing a proxy who makes decisions on behalf of incapacitated or disabled patients who have no written directive. Under Florida Chapter 765, a proxy is required to make medical decisions for an incapacitated patient based on what the proxy believes the patient would have made under the circumstances. “Did the Legislature say it was amending Chapter 765 or any other chapter by effecting this legislation?” asked Justice Raoul G. Cantero III, one of two Bush appointees on the Supreme Court. “No, your honor,” Destro said. Terri’s Law should be read in conjunction with Chapter 765, however, because it pertained to the same topic, he explained. The governor “is sworn to uphold Chapter 765. His duty is to make sure that Terri’s rights are respected,” Destro said. In October, after many years of litigation and four rulings by the state’s 2nd District Court of Appeal, Pinellas County Circuit Judge George Greer entered the order to withdraw Terri’s feeding and hydration tubes based on testimony from Schiavo’s husband, Michael, who is her court-appointed guardian. Michael had testified that Terri told him before her collapse in 1990 that she would not want to be kept alive through artificial means. Terri had no living will. But spurred on by a national outcry from right-to-life groups, Bush and Republican House Speaker Johnnie Byrd rushed Terri’s Law through the Florida Legislature. The bill gave the governor the authority to restore food and hydration in cases involving patients who have no living will, are in a persistent vegetative state, have had nutrition and hydration tubes removed and have family members who challenge the removal. The law expired after 15 days. Michael Schiavo immediately filed suit challenging Terri’s Law as unconstitutional. He said the bill violated Terri’s due process rights and her right to privacy. In May, Pinellas County Circuit Judge W. Douglas Baird agreed, ruling that the law was unconstitutional because it violated the Florida Constitution’s separation of powers doctrine by overturning a final court ruling. Bush appealed, and the 2nd DCA passed the case directly to the Supreme Court as a question of great public importance. In June, the high court voted 4-3 to accept the case for review. As Terri’s guardian, Michael has the legal authority to make medical decisions on her behalf. But because Terri’s parents contested removing the food and hydration tubes, the decision to remove the tubes was made by Judge Greer, a judge in the probate division. As required by Chapter 765, Judge Greer ruled twice that there was clear and convincing evidence that Terri’s condition was terminal and that she would have preferred to die. Both rulings were upheld by the 2nd DCA. “Is there any place in Florida statute that gives the governor the power to stay a court order?” Justice Peggy A. Quince asked Destro. “The governor does have the power in death cases,” Destro said, referring to stays of execution authorized by Florida Chapter 922. ‘IGNORE REALITY’ Chief Justice Barbara J. Pariente questioned why Terri’s Law was written to expire after 15 days if its purpose was to provide extra protection to an entire class of disabled individuals. “The Legislature wanted to see how it would work so they could tweak it,” said Kenneth Connor, a Tampa, Fla., plaintiffs lawyer and Christian conservative leader who also argued on behalf of Bush in the case. Justice Wells asked Connor to explain how Terri’s Law was not an unconstitutional special law written to address one case. Under the state constitution, laws must be written to apply to broader classes. “You’re not asking us to hold that this act applies to more than Terri Schiavo?” Wells asked Connor. “It applies to all people who fit the criteria,” Connor replied. “On its face, it applies to more than just Terri’s case.” “We would have to ignore reality to believe that, wouldn’t we not?” Wells said. Michael Schiavo’s attorney, George Felos, argued that Terri’s Law violated the separations of powers clause of both the federal and state constitutions. That provision bars one branch of government from performing the powers of another. By overriding a final court ruling, the Legislature and the governor encroached on the powers of the judiciary, Felos said. “It’s obvious here that the intent of the Legislature is to overturn a final judgment of the court that particularly displeased them,” Felos said. “What the governor is trying to do is relitigate and force a readjudication of Terri Schiavo’s rights, which have already been fully and finally litigated in the courts of the state.” But the justices questioned whether Judge Greer’s order really could be considered final when Terri Schiavo was still alive. Under Florida Civil Rules of Procedure, a probate case or any other court judgment can be reopened upon a showing of new evidence or circumstances that the judgment is no longer valid. “This was a final judgment,” Felos replied. “The fact that a final judgment can be vacated in the future doesn’t make it any less final.” “Is there any procedure by which the governor could intervene?” Justice Quince asked. “I don’t think so,” Felos said. Only the state attorney’s office would have the authority to intervene in the court proceedings to assert the state’s interest in protecting life, he said.

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