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The 2nd District Court of Appeal ruled that Bush's attorneys will be allowed to question witnesses in the court battle over a law that gave the governor authority to reinsert Terri Schiavo's feeding tube after her husband had it removed in October.With all due respect to the AP, I do not agree. As I discussed in the post below, the Second District held that Judge Baird failed to address two issues that are fundamental to determining whether Governor Bush may properly be precluded from deposing the witnesses he wishes to depose: namely, whether any facts are material to the constitutional challenges before the court and whether Governor Bush is precluded from litigating any particular issues because they were resolved in the earlier litigation between Michael Schiavo and the Schindlers.
If one accepted the argument of Mr. Schiavo's counsel that those facts were not properly the subject of discovery in the declaratory judgment action because they had already been finally adjudicated in the guardianship proceeding, it is arguable that taking depositions to inquire into such matters could be unduly burdensome, annoying, or oppressive. On the other hand, if one accepted the position of the Governor's counsel that the Governor is not bound by the adjudicated facts in the guardianship proceeding, it is arguable that the Governor could be denied his right to pursue discovery he believes is necessary for him to support his defense of the constitutionality of the statute.So whether the Governor will be able to conduct the discovery he wishes to conduct will turn on decisions that Judge Baird has not yet made. Once they are made, it seems fairly likely that the matter will be appealed again by whoever disagrees with the judge's decision. So this part of the case seems a long way from being over.
The judge, on the judge's own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.Under this rule, a criminal contempt proceeding may begin when the judge acts either on his or her own motion or on the testimony of any person. As if the emphasized language isn't clear enough, in the case of a person's testimony, Florida case law requires that the testimony be sworn and that the witness have personal knowledge of the facts.
Except in capital cases in which execution has been scheduled, a motion will be treated as an emergency motion only when both of the following conditions are present:In other words, circumstances must be such that a week's delay will moot the issue, and the moving party must not have merely waited to file the motion until the week before mootness is about to occur.
1. The motion will be moot unless a ruling is obtained within seven calendar days; and
2. If the order sought to be reviewed is a district court order or action, the motion is being filed within seven calendar days of the filing of the district court order or action sought to be reviewed.
I know that something similar like this was used to get to get Governor Bush involved in the Terri Schiavo case. Now, it appears they are going about it on a different route. Would a petition of this sort carry any weight into impeaching Judge Greer? and would you care to comment on any of the 30+ transgressions?My response:
I will comment on how sad that petition is. Judge Greer is an honorable public servant who does not deserve such treatment.
Our judicial system utilizes a system of checks through the appellate process, and the bottom line is that Judge Greer's rulings have been repeatedly affirmed on appeal. Most of what I see in that list I do not think the Schindlers have argued in court, let alone on appeal, which says much about the merits of those allegations.
Some of those allegations are so legally baseless that they are amusing.
As for the points in the list that the Schindlers have previously raised on appeal, those arguments have been rejected, which definitively resolves their merits as nonexistent. In that sense, the petition may just as well name the Second District judges who affirmed Judge Greer's decisions and the Florida Supreme Court justices who found the Second District's decisions not to be in conflict with prior precedent. Judge Greer has not been a lone wolf here -- he has made his decisions, and all sides have had, and will continue to have, every chance to challenge his findings and conclusions on appeal.
I suppose the people who authored that petition and who support it are comforted by their actions, but that does not make their allegations of error and misconduct correct. I wonder if any of those persons has a law degree, with the education and training to opine on what constitutes a violation of the law or the canons of judicial conduct. I suspect I know the answer.
I understand your comment about Governor Bush, but he did not become involved in this case because of anything similar. He became involved because numerous persons asked him to do something, and he responded to those requests by advancing the bill that eventually became "Terri's Law." I have never heard Governor Bush state that Judge Greer has violated the law or the canons of judicial conduct in any way.
To answer your question about whether this will carry any weight, I am confident the answer is no. None whatsoever.
Let me clarify that all this does not mean that I believe Judge Greer has been correct in every decision he's made in this case. What it means is that his decisions have thus far been determined by higher courts to be consistent with the law of Florida. Attacking him -- with a petition for impeachment, no less -- is simply absurd.
How very sad. Thanks for sharing it with me, though. It's good to be aware of what's going on, even if it's depressing to hear.
Impeachment is a harsh and constitutionally important matter. It is intended to be a remedy for misconduct, not for mistakes in legal decisions or for having an unpopular philosophy. Legal mistakes or misjudgments should be corrected through the appellate process, and under no circumstances should a judge be impeached based on legal rulings that have been affirmed. Since our trial judges in Florida are elected, personality issues or philosophical concerns can be addressed at the ballot box.I encourage everyone to take an interest in the law and have an opinion on it. That's part of the purpose of this web log -- to help inform people about what's going on in Florida law. I also encourage people to trust the legal system in Florida. It is filled with fine judges at all levels, and while mistakes are made, the system almost always corrects them.
[T]he testimony of individual members of the legislature as to what they intended to accomplish is of doubtful worth in determining legislative intent and may not even be admissible.The same point was made many decades earlier by the Florida Supreme Court when it decided Security Feed and Seed Co. v. Lee, 189 So. 869, 870 (Fla. 1939):
We do not overlook the support given appellants' contention by affidavits of members of the Senate as to what they intended to accomplish by the act brought in question. The law appears settled that such testimony is of doubtful verity if at all admissible to show what was intended by the Act.The rationale here is that statements made after a law is passed are unreliable opinions about what happened. Statements actually made to a legislative body before a law is passed, however, are evidence of what the legislators had before them when making their decision. Before-the-fact statements are probative of legislative intent; after-the-fact statements are not.
We begin our discussion by emphasizing that our task in this case is to review the constitutionality of chapter 2003-418, not to reexamine the guardianship court’s orders directing the removal of Theresa’s nutrition and hydration tube, or to review the Second District’s numerous decisions in the guardianship case.Meanwhile, there are a number of things still going on that concern the guardianship court. Two concern Michael's status as Terri's guardian. They are ancillary to the decision to remove Terri's feeding tube because that decision was made by the court based on what Terri would want, not what her guardian wants. Whether Michael is Terri's guardian or someone else is would not change the result regarding Terri's wishes. I'll post about these items more in the future.
There must be more than a "preponderance of the evidence," but the proof need not be "beyond and to the exclusion of a reasonable doubt." This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.Let the debates continue.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
One side says that because Michael brought the petition the Schindlers had to disprove Terri's wishes. It is my understanding from reading several other cases on end of life procedures that the petitioner for removal must provide the 'clear and convincing' evidence that the ward would not want want to be kept alive by extraordinary measures. In other words it's the opposite of criminal trial where the plantiff actually has to defend the statements he's making. Does Florida law work the opposite or am I just misunderstanding what the law says? If you could explain this better I think it would help greatly.And my response:
It's somewhat awkward to speak of burdens in this context because it's not as if someone came into court as a plaintiff and had the burden of proving something to obtain relief from a judge or jury. It's difficult to conceptualize any result in this sort of case as "relief."
The trial judge's role was to determine what Terri would want to do in this situation. Under controlling Florida case law, there is a presumption that she would continue to receive life-prolonging measures, and that presumption can only be overcome by clear and convincing evidence to the contrary.
So, before Judge Greer could decide that Terri would not wish to continue receiving her feeding tube, he had to determine that clear and convincing evidence supported that result.
I think of it as a two-step process. First, decide if, based on all the evidence (and only the evidence) presented in court, would Terri choose to continue receiving the feeding tube or would she choose not to do so. If the answer is that she would not, then decide if the evidence supporting that result meets the standard of "clear and convincing" evidence. If it does, then the ultimate decision is to discontinue life-prolonging measures. If it does not, or if the answer to the first question was that she would continue to receive life-prolonging measures, then life-prolonging measures should be continued.
I find this view more accurate, and certainly less awkward, then talking about whether someone carried a "burden" of proving someone else's wishes.
(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.Remember, the separation of powers provision states that no member of any branch can exercise the powers of any other branch "unless expressly provided herein." The governor's and the legislature's clemency powers are "expressly provided" therein, so by the provision's very terms those powers do not violate the separation of powers concept.
(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.
Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.(citations omitted.)
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