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In a sharp rebuff to Gov. Jeb Bush, the Florida Supreme Court unanimously declared unconstitutional a law pushed through by Bush and legislative Republican leaders to override a court order and keep Terri Schiavo alive. The 30-page ruling, written by Chief Justice Barbara Pariente, said the so-called Terri’s Law — passed by the Legislature in October and giving the governor the power to override the order and restore food and hydration to Schiavo — violated the separation of powers clause of the state constitution. “The desire to prevent Congress from using its power to interfere with the judgments of the courts was one of the primary motivations for the separation of powers established at this nation’s founding,” the court said. “It is without question an invasion of authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case.” Terri Schiavo has been in a persistent vegetative state for 14 years and currently lives in a Clearwater, Fla., nursing home. She will not have her feeding and hydration tubes removed for at least 10 days, until the Supreme Court’s decision becomes final, said Bush’s attorney, Kenneth Connor. Bush has 10 days to file for rehearing before the high court, which stated in its decision that it would not grant any extensions. The justices heard oral argument in the case on Aug. 31. “We are not insensitive to the struggle that all members of Theresa’s family have endured since she fell unconscious in 1990,” the justices ruled. “However, we are a nation of laws and we must govern our decisions by the rule of law and not by our emotions.” The governor is evaluating his options and considering a possible appeal to the U.S. Supreme Court, said Connor, a Tampa plaintiffs lawyer who formerly headed the Family Research Council, a Christian right-to-life advocacy group based in Washington, D.C. In a conference call with reporters Thursday, Connor called the Supreme Court’s decision “lamentable” and questioned the judiciary’s ability to protect patients who are incapacitated and cannot speak for themselves. “Terri Schiavo will effectively die from starvation and dehydration,” Connor said. But the state Supreme Court ruled on the basis of Florida law, and the U.S. Supreme Court only accepts cases that involve a question of federal law. Many legal experts doubt that an appeal to the nation’s highest court will fly. “Ultimately, the U.S. Supreme Court is going to see this as a dispute between the branches of Florida government and they aren’t going to get involved,” said Erwin Chemerinsky, a constitutional law professor at Duke University. “There is no way the U.S. Supreme Court is going to take that.” Connor said, however, that Gov. Bush could appeal on the basis that his federal due process rights were violated because the Pinellas Circuit judge who found Terri’s Law unconstitutional in May did not allow the governor to defend his actions by taking depositions, examining witnesses or taking the case to a jury. Judge W. Douglas Baird had denied the governor’s request for discovery, ruling that the issue was one of law, not of fact. The case reached the state Supreme Court through a controversial series of court rulings and legislative and executive actions. It has touched off a vigorous national debate about a patient’s right to die. It also has triggered a profound constitutional conflict between the branches of Florida government. Now it’s likely to become embroiled in presidential election politics, with Democrats accusing Gov. Bush of using the case to fire up Christian conservative voters for his brother’s re-election effort. For years, Terri Schiavo’s parents, Bob and Mary Schindler, had disputed Terri’s husband Michael Schiavo’s contention that Terri would have wanted to die. They claimed Michael only wanted Terri dead so he could inherit a $700,000 medical malpractice award designated for Terri’s care. They also said he was in no position to speak for Terri when he was living with another woman, with whom he had two children. Last October, Pinellas Circuit Judge George Greer entered an order to remove Terri Schiavo’s feeding tubes based on testimony from Michael Schiavo, who is her court-appointed guardian. Michael had testified that Terri told him before she suffered a cardiac arrest in 1990 that she would not want to be kept artificially alive. She had left no living will. Six days later, spurred by a national outcry from right-to-life groups, Bush and Republican House Speaker Johnnie Byrd rammed “Terri’s Law” through the Legislature. The bill did not mention Terri by name, but 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. The governor immediately ordered that Terri’s feeding tubes be reattached. Michael Schiavo filed suit in Pinellas Circuit Court challenging the constitutionality of Terri’s Law. In May, Judge Baird declared the law unconstitutional, ruling that it violated Florida’s separation of power’s doctrine by overturning a final court order and delegating legislative duties to the governor. He also said it violated Schiavo’s right to privacy. Bush appealed, and the 2nd District Court of Appeal quickly sent the case directly to the Supreme Court as an issue of great public importance. The justices voted 4-3 to accept the case for review. In his briefs to the state Supreme Court, the governor raised the same due process claim that Connor said he may raise in an appeal to the U.S. Supreme Court. But the state high court did not address the issue in its ruling Thursday. Chemerinsky predicted that Bush’s due process argument would not persuade the U.S. Supreme Court to take the case. “In order for Bush to claim his due process rights were violated, he would have to show that his own life, liberty or property was involved,” Chemerinsky said. “Those are the only situations when due process applies.” Some legal experts accused Bush and Byrd of political pandering to conservative voters with their support for Terri’s law and the governor’s subsequent legal challenges. At the time Terri’s law was passed, Byrd was gearing up his campaign for U.S. Senate; he lost the Republican primary last month. “This was an absolute outrage,” said Andrew Berman, an appellate lawyer at Young Berman Karpf & Gonzalez in North Miami Beach. “They basically did it to garner support from the religious right. The constitutionality of what the Legislature and the governor did wasn’t even a close call.” Berman and other appellate lawyers noted the two justices recently appointed by Gov. Bush, Raoul G. Cantero III and Kenneth Bell, voted to uphold Judge Baird’s ruling and strike down Terri’s Law as unconstitutional. “The court said there is an inherent danger in letting the legislative and executive branch meddle in these issues that are supposed to be decided by the court,” said Robert Brochin, former deputy counsel to former Democratic Gov. Lawton Chiles and a partner at Morgan Lewis & Bockius in Miami. “That’s why the vote was 7-0.” In its ruling Thursday, the justices ruled that Terri’s Law was unconstitutional both on its face and as it applied to Terri Schiavo. But the high court did not reach the issue of right to privacy, which is enshrined in the state constitution. In its ruling, the court noted that the power of the judiciary is not only to rule on cases but to decide them. The only remedy for a party who is unhappy with the outcome is to appeal to a higher court — not to the governor or Legislature. The separation of powers clause, which the court called “the cornerstone of American democracy,” prohibits one branch of government from encroaching on the powers of another. The decision said that court cases can be reopened if new evidence showed that the final judgment is no longer appropriate. But that doesn’t mean that a court ruling is any less final, the court wrote, rejecting arguments by the governor that Judge Greer’s ruling was merely executory and not final. “The fact that a final judgment may be subject to recall under a rule of procedure, if certain circumstances can be proved, does not negate its finality,” Pariente wrote. Terri’s Law also violated the separation of powers doctrine because it gave the governor unrestricted discretion to order Schiavo’s feeding tubes removed. The law did not specify how long the stay of the court order could remain in effect or under what conditions it could be lifted, Pariente said. It also did not comply with Florida guardianship law, which requires those acting in proxy for an incompetent patient to carry out the patient’s wishes. Bush’s lawyers had argued that Terri’s Law was supposed to be an amendment to current guardianship law. But the court said the law itself made no mention that it was supposed to be read in conjunction with Florida’s guardianship statutes. “Although unquestionably, the Legislature may enact laws to protect those citizens who are incapable of protecting their own interests, such laws must comply with the constitution,” the court said. Because Terri’s Law included no specific guidelines for the governor, the Legislature had unconstitutionally delegated its lawmaking powers to the executive branch, the court said. The ruling stressed that the purpose of constitutional separations of powers is to protect the fundamental rights of citizens regardless of popular opinion. Without such protection, “vested rights could be stripped way based on popular clamor,” the high court said. “The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost, especially their belief that our courts exist precisely to preserve the right of individuals, even when doing so is contrary to popular will.”

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