From Staff Reports, LAKELAND, FL (The Register) Monday, 14 June 2004 - The highly publicized "Terri's Law" was challenged in court today by Michael Schiavo, estranged husband and legal guardian of Theresa "Terri" Schindler-Schiavo, the young woman at the center of a guardianship dispute regarding treatment she has received while in the care of her guardian and under the supervision of the courts, the Florida Agency for Healthcare Administration, and the Florida Department of Families, Adult Protective Services (formerly known as HRS, the Health and Rehabilitative Services, a state agency).

The Terri's Law challenge has been defended by Florida Governor, Jeb Bush, in a case that was referred to the state's supreme court, but the defense by the family of Schindler-Schiavo revolved around whether the family had an interest in the case and could intervene. This case featured Michael Schiavo as the party being sued, as opposed to the case with the Governor, in which Mr. Schiavo was the suing party. The Second district appellate Court heard oral arguments hearing this morning in its main Lakeland, Florida courthouse branch.

The proceedings started slightly before 9:30 hearing schedule, and it appeared that there were no other news agencies present, or, if they were, they took notes very discretely. Follow-up coverage by The Register may touch upon news coverage by other press.

The family was represented by an attorney from the American Center for Law and Justice (ACLJ), while longtime family attorney Pat Anderson quietly watched the proceedings and took a break from what normally would have been her turn at bat. The ACLJ attorney, David Cortman, who also filed a brief in the case, put on a lively performance. In his presentation, he pointed out that even non-family members have a vested interest in the welfare of their children by way of case-law example, in which some prospective adoptive parents had grounds to intervene when their child was endangered. How much more, in Terri's case, he seemed to imply, when she is the natural child -a blood relative -of her parents. Cortman also made the argument that the fact that both Governor Jeb Bush and the family triggered the law adds credence to their right to intervene. Lastly, in his presentation, he mentioned that the case would be moot were the Schindlers to not have made the challenge in their daughter's case, implying that as authors of the case, they should be allowed to be finishers too, and allow the challenge to their intervention to be dismissed.

Judge Charles Davis, a large, light haired character who is seen leaning back in his chair sometimes, is one of the more vocal members of the court, and asked Cortman if intervention should be allowed if the law specifically provides for it. This was a surprising move, as the court seemed to imply that the Schindlers had a right under law, a slight reversal of the bad trend of court rulings they have been getting recently. Davis may have gotten his idea for this question from another oral argument in a previous case: Register editor, Gordon Watts, who supplied some material for this story, had oral arguments before the same three-judge panel on an unrelated issue this past October 08, 2003. In his oral argument, Watts asked the panel (Davis, Fulmer, and Wallace) if the law specifically allowed for two different methods of calculation of a timely complaint, then should the racial discrimination complaint not be accepted as timely if it meets either criteria. Whether Davis saw Watts in the audience and was reminded to ask Cortman the same question Watts asked him or not is pure speculation. That panel eventually ruled against Watts, without issuing any opinion to explain its logic, and the case is currently being appealed in the State's High court.

Judge Carolyn Fulmer informed Cortman that his time had run out but kindly allowed him three extra minutes for rebuttal, the part-3 of the oral arguments.

During his defense of his client's claim that the Schindlers should not intervene, George Felos, the well-known "right to die" lawyer, took the stage and announced his identity to the court, a formality, in which lawyers often declare to the effect "May it please the court: Attorney, John Q. Smith, for the defense."

Felos' main line of attack was his contention that the Schindlers did not have the right to intervene because he claimed that they had no interest in the outcome of the Terri's Law challenge, that is, did not stand to lose enough to allow them to have legal standing to sue. He also made the argument that even if they did have legal right to sue, the trial court, Judge W. Douglas Baird, of Pinellas County's Sixth Judicial Circuit, should be affirmed and upheld against challenge if it was a correct ruling --even if the method used to arrive at that conclusion was based on flawed logic, a sort of "ends justify the means" reasoning. While this method of deciding cases seems unusual, prior rulings have upheld this standard, most probably with the thought that the right decision would have been reached anyway, and this is a time-saver. For example, a recent brief on an election case made this quote: "As this court said in Newsweek, Inc. v. Department of Revenue, 689 So. 2d 361, 362 (Fla. 1st DCA 1997), “(w)e must affirm if the trial court was correct for any reason.” Thus, whatever may be the reasoning, if the trial court reaches the correct conclusion, the rationale used to reach that conclusion is of no import. “The decision of the appellate court must be made, not on the basis of whether the trial court … traveled the proper route, used the proper reasoning, or laid his conclusion on proper grounds, but rather whether his conclusion is correct or incorrect.” (Quote from Answer Brief of George Waas, Assoc. Fla. Atty. General, in case number 1D02-5120)

Felos cited the "Morgareidge" intervention rule, which allows intervention by all parties who have interest in the outcome of a case. However, he told the panel of judges that there was a less-well-known standard in this rule, in which the Schindlers needed to be "necessary and proper parties." Felos' argument reasoned that the Schindlers do not have a "direct interest" in the Terri's Law case, but only a "contingent interest," because the striking down of Terri's Law would not necessarily mean that Terri Schiavo would die.

He also suggested that the fact that Terri's parents do not have full legal custody of their child has hurt their case.

Next, Felos appealed to the court's human side and said that the opposing counsel was being a disruption and trying to change the subject, so to speak, in confusing issues. Felos said that the issue before the previous probate courts was "Terri's intent." However, he claimed that the current issue under review was the whether Terri's Law was "overruling" the court's findings of fact about Terri's wishes. In a related court case, Watts has challenged the treatment given to Ms. Schiavo as harmful or injurious, and raised the issue of "felony abuse" of the disabled under chapter 825 of State Law, and the issues regarding whether medical care, therapy, and rehabilitation were provided to comply with other applicable State and Federal laws, which is independent of what Terri's wishes may have been.

Felos argued that intervention is not a matter of right but discretionary and up to the trial court. He said that since the facts of the lower court were not in question, only points of law could be argued, and that the Governor therefore needed not to question witnesses or introduce evidence into discovery.

At this point, the arguments took a strange twist, best described by "truth is stranger than fiction." Attorney Felos hammered his argument that the opposing counsel was being a disruption by arguing that the Schindlers' daughter was not receiving proper therapy and rehabilitation and that this argument, off-topic, according to him, might tend to sway the appeals court judges into sympathy for the Schindlers because, as he put it, the judges were humans, and not "automatons," who could turn off their emotions and ignore emotive pleas for help.

Regardless of whether he was correct in saying that this issue was off-topic for the appeal being argued, he inadvertently did the very thing that he accused his opposing counsel of doing: He reminded the court that many people are disturbed about alleged medical malpractice, neglect, and abuse, most especially after recent report surfaced about five of Terri's teeth having to be pulled, even in spite of the fact that her estranged husband has repeatedly insisted that he was a good guardian, loving husband, and someone who is not neglecting basic medical care.

The panel informed him that his time was up, and Attorney Cortman took the stage for the closing rebuttals in the oral argument hearing.

His answer to some of the issues that Felos raised reasoned that even if reasonable people can disagree, a main reason for allowing the trial judge the authority to exercise discretion and settle the disagreement --that was still insufficient justification for a judge to just do anything he or she wanted. He implied that the Schindlers' involvement is reasonable because they stood to be harmed is Terri's Law is struck down by the Florida Supreme Court.

Judge Fulmer, one of the newer judges on the court, was setting the pace, and asked Cortman if he would have any parent be able to intervene in the matter of any child any time they wanted. This conjured up images of minor civil suits and traffic ticket cases having the involvement of the parents of all the adult children in these proceedings, and Cortman predictably told Fulmer that he was not asking this at all.

He affirmed that Terri's parents' involvement was one of a small portion of cases, such as one-percent or so, in which a life was in jeopardy, and the losses by the family were great enough to justify involvement, giving the listener the impression of a civil suit, in which a multi-million dollar award is issued to a family for the negligent death or injury of one member of the family.

Judge Douglas Wallace, one of the quieter members of the court, a thin, dark-haired judge, reminds one of an old librarian, or a friendly, neighborhood TV repairman, who hides in his shop, away from the view of the public, consumed by his hobby. However, Judge Wallace had a few questions of his own. He asked about what may happen if the lawmakers passed an illegal bill of attainder, a law specific to one person or group. Wallace asked what if legislators passed a law saying that certain Joe Average Citizen was doing something illegal and that his property must be seized?

While not coming right out and saying it, he seemed to imply that some people think that public law 2003-418, dubbed "Terri's Law," was written to apply to only one person, Theresa "Terri" Schiavo. Opponents of that claim have long held that the law could theoretically apply to anyone, and that the Governor, in issuing a "one-time stay," had the right to issue it to whomever he wanted, just as he can do in pardons of a killer on death row.

Before the oral argument hearing, Watts put the court on notice that he has a similar case pending, a common act by litigants and known as a "Notice of Related Case." Watts also requested to participate in oral arguments and to consolidate the cases into one. Because the hearing started early, the judges did not get a chance to review the request to participate in oral arguments as a citizen affected by the ruling on this state law, but the outcome of the case in other areas is not known as yet.

Even if the State High Court upholds "Terri's Law," that does not prevent a future Governor from "reversing" the stay and ordering the feeding tube removed. The upholding of the highly-disputed law also does not address concerns that Terri Schiavo may be getting poor medical treatment, and after reports that she was denied basic antibiotics after a minor urinary tract infection and put on a "do no resuscitate" list, should she have a heart attack, many are worried.

The fact that her husband has insisted that she be cremated should she die, before any autopsy can be done to investigate the bone scans that have come out, has led many to believe that Terri is the victim of spousal abuse and that her husband is afraid that therapy to help her speak or write might reveal abuse on his part. This has been fueled by other reports in the news that disabled victims of neglect have died under the custody and guardianship of relatives or the state.

The Register appears to have been the only news source to have covered these oral arguments, after a cursory review of the local and front page news sections of the Tampa Tribune, St. Pete Times, or The Ledger of Lakeland, a New York Times paper. Mainstream local press have also not given coverage to Watts' Habeas Corpus pleadings, which the Florida Supreme Court has refused to dismiss, even after many people have suggested that Watts does not have legal standing to bring this complaint. The courts have reviewed Watts' petitions, making requests for minor clarifications in some cases. Details of these case are posted on the Court Cases section of The Register. While this could be due merely to the fact that the court has not reviewed it thoroughly, as some have suggested, the courts have shown that they are able to dismiss even relatively solid cases, such as the recent recount challenge that Watts brought before the courts: The Supreme Court dismissed this case, SC04-66, in ten (10) days, very fast by any standards.

Reporters who have been covering this saga include Bill Levesque, of the St. Pete Times and Dave Sommer and Rick Barry, both of the Tampa Tribune. The Lakeland Ledger has not written about this, chosing instead to grab stories off the wire.

This would imply that Watts' cases regarding Terri Schiavo and the related state laws' enforcement have merit or at least that he has standing (legal right) to proceed. In light of this, it is a mystery why the local press adamantly refuse to give news coverage of Watts' efforts. This would make one wonder how many other cases there are out there about which "free press" are not informing the public. The issues of the First Amendment and allegations that America has a "controlled press" have been a long-time bone of contention between citizens of differing points of view and parties with different interests at stake, or, more pointedly put, would stand to gain or lose differently should certain stories run.

After the hearing, Watts, who contributed to this report, welcomed the Schindlers and their attorney, Pat Anderson, to Lakeland, and wished them a safe trip back to Pinellas County.

Editor, Gordon Watts comments: This story is passed on by Cheryl Ford, RN.

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"First, they [Nazis] came for the Jews. I was silent. I was not a Jew. Then they came for the Communists. I was silent. I was not a Communist. Then they came for the trade unionists. I was silent. I was not a trade unionist. Then they came for me. There was no one left to speak for me." (Martin Niemoller, given credit for a quotation in The Harper Religious and Inspirational Quotation Companion, ed. Margaret Pepper (New York: Harper &Row, 1989), 429 -as cited on page 44, note 17, of Religious Cleansing in the American Republic, by Keith A. Fornier, Copyright 1993, by Liberty, Life, and Family Publications.

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