Posted on 12/06/2003 7:15:45 PM PST by msmagoo
SECOND DISTRICT COURT OF APPEALS
FOR THE STATE OF FLORIDA
CASE NO. 2D03-5200
ROBERT SCHINDLER and MARY SCHINDLER,
parents of THERESA MARIE SCHIAVO,
Appellants,
vs.
MICHAEL SCHIAVO, as Guardian of
the person of THERESA MARIE SCHIAVO
Appellee.
On Appeal from the Circuit Court for the Sixth Judicial Circuit
In and for Pinellas County, Florida, Circuit Civil Case No. 03-008212-CI-20
APPELLANTS' INITIAL BRIEF
AMERICAN CENTER FOR LAW AND JUSTICE
PATRICIA FIELDS ANDERSON, P.A.
Jay Alan Sekulow* Patricia Fields Anderson
James M. Henderson, Sr.* Fla. Bar No. 352871
Walter M. Weber* SPN 00239201
David A. Cortman* 447 3rd Avenue North, Ste. 405
201 Maryland Avenue, NE St. Petersburg, FL 33701
Washington, DC 20002 (727) 895-6505
(202) 546-8890 (727) 898-4903 fax
(202) 546-9309 fax
*Motion pro hac vice filed contemporaneously herewith
Attorneys for Appellants Robert and Mary Schindler
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
I. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. THE TRIAL COURT ABUSED ITS DISCRETION BY APPLYING AN
INCORRECT STANDARD OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. STANDARD OF LAW REGARDING INTERVENTION . . . . . . . . 9
B. THE TRIAL COURT DID NOT APPLY THE CORRECT
STANDARD. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 10
III. APPELLANTS SATISFY THE STANDARD FOR INTERVENTION. . . 13
A. LESSER INTERESTS THAN APPELLANTS' INTEREST IN
PRESERVING THE LIFE OF THEIR DAUGHTER HAVE
SUFFICED FOR INTERVENTION. . . . . . . . . . . . . . . . . . . . . . .. . 14
B. APPELLANTS' INTERVENTION WILL ADDRESS ISSUES THAT
ARE PART OF THE LITIGATION AND WILL NOT DELAY OR
DISRUPT THE PROCEEDINGS, NOR CAUSE A
DISADVANTAGE TO ANY PARTY. . . . . . . . . . . . . . . . . . . . . . . 20
IV. THE TRIAL COURT'S FAILURE TO EXPLAIN ITS DENIAL IS ALONE
SUFFICIENT FOR REVERSAL AND REMAND. . . . . . . . . . . . . . . . . . . 22
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 27
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ii
TABLE OF AUTHORITIES
Florida Cases
Arguelles v. City of Orlando,
2003 Fla. App. LEXIS 15235 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . 6
Bay Park Towers Cond. Ass'n v. H.J. Ross & Assocs.,
503 So. 2d 1333 (Fla. 3rd DCA 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 9,20
Borden v. Borden-Moore, 818 So.2d 604 (Fla. 5th DCA 2002) . . . . . . . . . . . . . 15
C.S. v. S.H., 671 So. 2d 260 (Fla. 4th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . 14, 18
Childers v. State, 847 So. 2d 1120 (Fla. 1st DCA 2003) . . . . . . . . . . . . . . . . . . 6, 12
Chriss v. Chriss, 417 So. 2d 835 (Fla. 1st DCA 1982) . . . . . . . . . . . . . . . 14-16, 19
Cifrian v. Cifrian, 715 So. 2d 1068 (Fla. 4th DCA 1998) . . . . . . . . . . . . . . . . . . . 23
Ding v. Jones, 667 So. 2d 894, 897 (Fla. 2nd DCA 1996) . . . . . . . . . . . . . 13, 14, 24
Ferrell v. State, 653 So. 2d 367 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 23
Hartford Fire Ins. Co. v. School Bd., 661 So. 2d 111 (Fla. 3rd DCA 1995) . . . . . . 8
In Re Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991) . . . . . . . . . . . . 14, 17
J.R. v. R.M., 679 So. 2d 64 (Fla. 4th DCA1996) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Providence Wash. Ins. Co. v. Southern Guarantee Ins. Co.,
667 So. 2d 323 (Fla. 1st DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 8
Provident Life and Accident Ins. Co. v. Prichard,
636 So. 2d 731 (Fla. 4th DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 8
Schindler v. Schiavo (In re Guardianship of Schiavo),
792 So.2d 551 (Fla. 2d. DCA 2001) (Schiavo II) . . . . . . . . . . . . . . . . . . . . . 3
iii
Schindler v. Schiavo (In re Guardianship of Schiavo),
780 So.2d 176 (Fla. 2d. DCA 2001) (Schiavo I) . . . . . . . . . . . . . . . 3, 17, 19
Schlafke v. Schlafke, 755 So. 2d 706 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . 10
SEIU, Local 16 v. Public Emples. Rels. Comm'n,
752 So. 2d 569 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 16
Union Central Life Ins. Co. v. Carlisle,
593 So. 2d 505 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . .. 7, 9, 10,13, 21
Vocisano v. Vega, 602 So. 2d 680 (Fla. 2nd DCA 1992) . . . . . . . . . . . . . . . . . . . . 8
Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000) . . . . . . . . . . . . . . . . . . 22, 23
Other Cases
Henderson v. Stanton, 1998 U.S. App. LEXIS 30884 (D.C. Cir. 1998) . . . . . . . 25
Statutes and Other Authority
Fla. Stat. § 731.201 (21) (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17
Fla. Prob. R. 5.025(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 3
Fla. R. Civ. P. 1.230 . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 9, 10
Public Law 03-418 (HB-35E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1
STATEMENT OF THE CASE
On October 21, 2003, the Florida Legislature enacted Public Law 03-418
(formerly House Bill 35-E). The Public Law authorizes the Governor of the State of
Florida to issue a one-time stay in certain cases where a patient is being subjected to
starvation and dehydration following a finding by a court that the patient is in a
persistent vegetative state (PVS), but where there was no written advance directive
by the patient to withdraw food and water from the patient in the event of incapacity.
Pursuant to the Public Law, the Governor is authorized to issue a stay if the
following conditions are met: (a) a court has found that an incapacitated patient is in
a PVS; (b) there was no written advance directive to withhold food and hydration; (c)
the withholding of food and hydration has already occurred as of October 15, 2003;
and (d) a family member of the patient challenges the withdrawal of food and
hydration and seeks a stay of same from the Governor.
On October 21, 2003 Appellants Robert and Mary Schindler made a written
request to Governor Jeb Bush for a one-time stay pursuant to the Public Law. The
stated conditions having been satisfied, the Governor granted the request for a stay.
The Governor issued a stay in the form of Executive Order 03-201, directing Theresa
Schiavo's care providers to resume feeding and hydration by means of a gastronomy
tube ("G-tube") or "any other method deemed appropriate in the reasonable judgment
of a licensed physician."
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Pursuant to that stay, and after seven days of starvation and dehydration,
Theresa Schiavo ("Terri") was removed from the hospice facility in Pinellas Park and
taken to Morton Plant Hospital where food and hydration were restored, saving
Terri's life.
On or about October 21, 2003, the guardian for the person of the ward, Michael
Schiavo ("Schiavo"), filed this action in the court below, challenging the
constitutionality and validity of the Public Law and the Executive Order, and seeking
to resume the starvation and dehydration of Terri.
On October 30, 2003, the Schindlers filed with the trial court their Verified
Motion for Leave to Intervene and Supporting Memorandum, requesting from the
trial court permission to intervene in the instant action. The Schindlers sought
intervention because they stand to lose the life of their daughter by the direct legal
operation and effect of the judgment in this case as to the constitutionality of the
statute at issue.
Appellants Robert and Mary Schindler are direct beneficiaries of the Public
Law, which by its very terms allows for the vindication of family members to
challenge the starvation and dehydration of an incapacitated patient, where the patient
left no advance written directive that would authorize the patient's death by starvation
and dehydration. Likewise, Appellants, who are the parents of the patient whose very
3
life depends on the outcome of this action, are direct beneficiaries of the challenged
Executive Order implementing the Law.
Appellants maintain interests as parents in keeping Terri alive, and maintain
interests in defending Terri's wishes to be kept alive, and are interested parties in the
instant litigation challenging the Law and Executive Order. Moreover, Appellants
have been recognized by this Court as having standing to address the issues regarding
Terri's starvation and dehydration in parallel guardianship proceedings, and to
challenge Terri's starvation and dehydration at any time up until the moment of the
her death. See Fla. Prob. R. 5.025(b); § 731.201 (21), Fla. Stat. (1997); Schindler v.
Schiavo (In re Guardianship of Schiavo), 792 So.2d 551 (Fla. 2d. DCA 2001)
(Schiavo II); Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So.2d 176
(Fla. 2d. DCA 2001) (Schiavo I).
Appellants also desire to become legal guardians of Terri and are actively
pursuing such in separate proceedings. This desire will necessarily be thwarted by
the removal of Terri's feeding and hydration and resulting death.
On October 31, 2003, after the Schindlers filed their motion to intervene, the
trial judge below sent a letter to the Schindlers’ counsel Patricia F. Anderson,
informing her that the judge had “contacted the parties to this case and suggested that
if they have any objection to the motion to intervene filed on behalf of Robert and
4
Mary Schindler, they should submit a written objection.” See Appellant's Appendix
attached hereto (App.) at Tab 1 (letter of Judge W. Douglas Baird).
On or about November 3, 2003, counsel for Petitioner Michael Schiavo filed
Petitioner’s Response to Appellants' motion to intervene. While the Response
conceded that the “Schindlers correctly cite[d] the legal test that determines
[intervention],” the Response made substantive arguments applying a different test,
other than the proper standard cited. See Petitioner’s Response (“Pet. Resp.”) at 4-8.
On November 4th, 2003, the trial court issued the Order on Robert and Mary
Schindler’s Verified Motion for Leave to Intervene, denying the Motion. See App.
at Tab 2 (November 4th order). The Order stated, inter alia, that “the manner of [the
Schindlers’] participation is more one of form than of substance in this instance, since
there are no significant factual issues to be developed that might be impacted by their
presence as a party.” Id. ¶ 4.
The Order further stated that “the Court finds that . . . the Schindlers do not
have a sufficient legal interest in the narrow subject matter of this litigation that
would justify formal intervention.” Id. ¶ 5. The Order contained no reasons or any
explanation for such a finding. The Order, however, indicated that the Schindlers
could participate in the case as amici curiae. See Id.
On November 6, 2003, Appellants filed a Motion for Rehearing And/Or
Clarification regarding the denial of their motion to intervene. The Motion sought
1 Governor Bush has appealed to this Court the trial court's denial of his motion
to dismiss for lack of jurisdiction, see Bush v. Schiavo, Case No. 2D03-5123. The
Governor has also filed a Petition for a Writ of Prohibition with this Court, see Bush
v. Schiavo, Case No. 2D03-5244, as well as a Motion for Disqualification of the trial
judge and a Motion to Strike Petitioner's Brief with the lower court. It is the
Governor's position that the trial court lacked subject matter jurisdiction over him as
a defendant, and therefore, the trial court's orders denying the Governor's motion to
dismiss and determining venue are void. The Governor's Petition for a Writ of
Prohibition seeks an order from this Court prohibiting the trial judge W. Douglas
Baird from presiding over this case on the basis that the movant asserts a reasonable
and well-founded fear of prejudice and bias. Cf. App. at Tab 1 herein.
5
reversal of the denial of intervention or, in the alternative, a clarification of the
grounds upon which the denial of intervention was based.
The same day, November 6, 2003, after Respondent Governor Bush had filed
a motion to dismiss for lack of jurisdiction,1 Appellants also filed a Motion to Stay
or Abate Filing Deadline, seeking extension of the filing deadlines for briefing in this
case. After no order was issued on the Schindlers' motion to stay the deadlines and
in light of the previously imposed briefing schedule, the Schindlers filed their amicus
curiae brief on the merits the same day, November 6, 2003.
On November 7, 2003, the trial judge issued an order denying Appellants'
Motion for Rehearing And/Or Clarification. The Order again did not explain why the
Schindlers' intervention was improper, but merely stated that "as stated in the
November 4, 2003 [order], the Schindlers' interest is not legally sufficient to allow
them to intervene." The November 7, 2003 order then proceeded to state that "even
6
if the [trial] Court did find that the Schindlers' interest was sufficient to support
intervention, intervention is a matter of the Court's discretion."
On November 14, 2003, the Schindlers filed their Notice of Appeal,
challenging in this Court the trial judge's denial without explanation of their motion
to intervene and motion for rehearing.
SUMMARY OF ARGUMENT
The trial court's decision to deny Appellants intervention in this matter should
be reversed as an abuse of discretion primarily for two reasons:
(1) the lower court applied an incorrect standard in determining the propriety
of intervention thereby abusing its discretion, see, e.g., Childers v. State, 847 So. 2d
1120, 1121 (Fla. 1st DCA 2003) (“[a]pplication of an incorrect standard . . . is an
abuse of discretion requiring reversal”); and
(2) the lower court failed to set forth the reasons or any explanation why
Appellants, in the lower court’s view, would not satisfy the requisite standard for
intervention, thereby making effective appellate review impossible and subjecting
itself to reversal, see Arguelles v. City of Orlando, 2003 Fla. App. LEXIS 15235, *4
n.1 (Fla. 5th DCA 2003) (reversing where “trial court failed to provide any findings
of fact or conclusions of law . . . which makes effective appellate review
impossible”).
7
Rather than determine whether Appellants had an interest in this litigation such
that they stand to "gain or lose by the direct legal operation and effect of the
judgment" in this case, Union Central Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507
(Fla. 1992), the trial court instead looked at Appellants' capacity to impact the
development of factual issues in the case and their ability to participate as an amicus.
However, neither the capacity to affect the development of factual issues nor the
ability to participate as an amicus has any bearing on the actual standard for
determining intervention. The standard for intervention employed by the trial court
was therefore incorrect.
On the other hand, application of the correct standard yields the result directly
opposite to that reached by the trial court. Under the correct standard, Appellants are
entitled to intervene in the current proceeding. Appellants' interest in preserving the
life of their daughter is more than sufficient for their intervention, as it is a greater
interest than those previously held by Florida courts to be sufficient for intervention.
Moreover, Appellants' intervention will not delay or disrupt the proceedings
in the instant case in any way, nor cause a disadvantage to any party because
Appellants agree, as they did in the lower court, that they will take the pleadings and
issues in this case as they find them. Appellants seek to address, in their capacity as
an actual party to this action, only the precise issues raised in Petitioner's complaint.
Thus, allowing Appellants to intervene in the current case will bring no prejudice to
8
any party, while not permitting Appellants to intervene will, at a minimum, deprive
them of their input regarding issues affecting the life of their child, and, at a
maximum, may violate their constitutional rights to be heard.
Finally, in addition to reaching an erroneous conclusion regarding the merits
of Appellant's intervention, the trial court failed to set forth any reasons, or otherwise
explain that conclusion. This failure alone warrants reversal and remand of the trial
court's erroneous orders denying Appellants' intervention, as trial judges are obligated
to explain their rulings at least to such an extent as to make effective appellate review
possible.
ARGUMENT
I. STANDARD OF REVIEW
A denial of a motion to intervene is reviewed on appeal under the abuse of
discretion standard. See, e.g., Vocisano v. Vega, 602 So. 2d 680 (Fla. 2nd DCA 1992)
(holding that "the trial court abused its discretion by denying [appellant's] motion to
intervene"); see also Hartford Fire Ins. Co. v. School Bd., 661 So. 2d 111, 112 (Fla.
3rd DCA 1995) ("trial court denied the [appellant's] motion to intervene, and in so
doing, abused its discretion"); Providence Wash. Ins. Co. v. Southern Guarantee Ins.
Co., 667 So. 2d 323 (Fla. 1st DCA 1995) (same); Provident Life and Accident Ins. Co.
v. Prichard, 636 So. 2d 731 (Fla. 4th DCA 1993) (same).
9
II. THE TRIAL COURT ABUSED ITS DISCRETION BY APPLYING AN
INCORRECT STANDARD OF LAW.
A. STANDARD OF LAW REGARDING INTERVENTION
Rule 1.230 of the Florida Rules of Civil Procedure provides that
Anyone claiming an interest in pending litigation may at any time be
permitted to assert a right by intervention, but the intervention shall be
in subordination to, and in recognition of, the propriety of the main
proceeding, unless otherwise ordered by the court in its discretion.
The Florida Supreme Court has stated the test to determine an interest which
entitles a party to intervene as follows:
The interest which will entitle a person to intervene must be in the
matter in litigation, and of such a direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect
of the judgment. In other words, the interest must be that created by a
claim to the demand in suit or some part thereof . . . .
Union Central Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507 (Fla. 1992) (citation
omitted). Additionally, Florida courts have interpreted the "subordination" clause of
Rule 1.230 as requiring that "one who intervenes in a pending action ordinarily must
come into the case as it exists and conform to the pleadings as he finds them." Bay
Park Towers Condominium Ass'n v. H.J. Ross & Assocs., 503 So. 2d 1333, 1335 (Fla.
3rd DCA1987) (citation omitted). The Schindlers satisfy the requirements for
intervention under the above standard, but as discussed below, the trial court did not
apply the correct standard.
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B. THE TRIAL COURT DID NOT APPLY THE CORRECT
STANDARD.
As grounds for denying intervention, the trial court stated in its November 4th
Order that “there are no significant factual issues to be developed that might be
impacted by [the Schindlers’] presence as a party.” Id. ¶ 4. A party’s capacity to
impact the development of new facts is not the correct standard for determining
intervention. Rather, the standard is whether a party is “claiming an interest” (Rule
1.230) which “the intervenor will either gain or lose by the direct legal operation and
effect of the judgement.” United Central Life Ins. Co. v. Carlisle, 593 So. 2d 505,
507 (Fla. 1992). Rule 1.230 governing intervention and the Supreme Court’s
interpretation of it thus do not contain the requirement imposed by the trial court that
a party impact by its presence the development of new facts in a case. Therefore, this
ground asserted by the trial court cannot provide the basis for denying intervention.
Furthermore, the trial court's finding that the Schindlers cannot impact any
“factual issues to be developed” is entirely unsupported by the record in this case, and
thus constitutes an abuse of discretion. See, e.g., Schlafke v. Schlafke, 755 So. 2d
706, 707 (Fla. 4th DCA 1999) (“we reverse and remand this cause to the trial court for
reconsideration” because “[t]his record contains no support for the [finding] ”). On
the contrary, because the Schindlers are currently seeking to become a guardian in a
related proceeding and because they petitioned the Governor to issue a stay pursuant
11
to the very statute at issue in this case, see App. at Tab 3 (Ver. Mtn. ¶¶ 4, 13), the
record already points to the factual issues to be developed that can “be impacted by
[the Schindlers'] presence as a party.”
The trial court also stated in its Order, as a basis for denying intervention, that
the “[Schindlers'] participation through the filing of an amicus curiae brief will allow
development of their legal arguments in this cause.” Id. ¶ 5. Again, whether an
individual or organization can submit an amicus brief in a case, rather than intervene,
is not the correct standard to grant or deny intervention.
Moreover, individuals and organizations always have the ability to request
participation in a given case as an amicus curiae, even without any direct link to the
case. Thus, under the Order issued by the trial court in this case, because “amicus”
participation will always permit that party to “develop their legal arguments,” a party
would never be permitted to intervene, but rather would be limited to an amicus
status, unless there are some “factual issues to be developed that might be impacted
by their presence.” Id. ¶ 4. But as noted previously, this is not the correct standard
for determining intervention. Thus, the fact that the Schindlers can participate in this
case as an amicus also cannot provide a basis for denying intervention in this case.
The Schindlers maintain that the November 4, 2003, Order deprives them of
a set of rights they would otherwise possess in this action as parties rather than amici,
including without limitation the right to be heard at oral argument, the right to answer
12
or otherwise plead, the right to participate in discovery, the right to participate in the
any trials or hearings, and the overall right to greater involvement and participation
in the proceedings. Filing an amicus brief is certainly insufficient to protect the
Schindlers' direct interest in the outcome of this case, as they stand to lose the life of
their daughter by operation and effect of the judgment regarding the constitutionality
of the statute at issue here, while allowing them to defend that statute as a party
would at least procedurally protect such interest.
Therefore, because the trial court in its November 4, 2003 and November 7,
2003 orders applied an incorrect standard regarding the Schindlers’ entitlement to
intervene, the denial of intervention should be reversed for abuse of discretion.
Childers v. State, 847 So. 2d 1120, 1121 (Fla. 1st DCA 2003) (“[a]pplication of an
incorrect standard . . . is an abuse of discretion requiring reversal”).
Petitioner similarly did not apply the correct standard for intervention in his
response below. Petitioner, rather, argued that “[t]he Schindlers do not have a legal
claim arising out of HB 35-E; it neither creates a right or benefit for the Schindlers,
nor does it burden any right they possess.” See Pet. Resp. at 6. In addition to the fact
that this conclusion is incorrect, it does not correctly state or apply the proper
intervention standard (i.e., “claiming an interest,” Rule 1.230, which “the intervenor
will either gain or lose by the direct legal operation and effect of the judgement.”
Carlisle, 593 So. 2d at 507). Contrary to Petitioner’s claim, HB 35-E does create a
13
right or benefit for the Schindlers: it provides the sole legal barrier between their
daughter and her death by starvation and dehydration. Thus, the challenged law – and
the stay the Governor issued pursuant thereto – provide the decisive protection of the
Schindlers' interests in saving their daughter and pursuing guardianship of her. To
argue that the Schindlers have no sufficient interest in the case or possess no right or
benefit at issue in this case completely ignores the facts.
Instead, the proper standard to determine intervention in the instant case is
whether the Schindlers stand to “gain or lose by the direct legal operation and effect
of the judgment [as to the constitutionality of the statute challenged in this case],” 593
So. 2d at 507, taken against the background of Florida’s liberal position that any
“persons possessing adverse interests in a controversy” are allowed be involved in
litigation. Ding v. Jones, 667 So. 2d 894, 897 (Fla. 2nd DCA 1996). This standard is
found nowhere in the trial court's orders. This correct standard is easily satisfied by
Appellants.
III. APPELLANTS SATISFY THE STANDARD FOR INTERVENTION.
The proper standard to determine intervention in this case is whether
Appellants stand to “gain or lose by the direct legal operation and effect of the
judgment [as to the constitutionality of the statute challenged in this case].” Carlisle,
593 So. 2d at 507. This standard should be taken against the background of Florida’s
liberal position that any “persons possessing adverse interests in a controversy” are
14
allowed to be involved in litigation. Ding v. Jones, 667 So. 2d 894, 897 (Fla. 2nd
DCA 1996). Appellants easily satisfy this standard.
A. LESSER INTERESTS THAN APPELLANTS' INTEREST IN
PRESERVING THE LIFE OF THEIR DAUGHTER HAVE
SUFFICED FOR INTERVENTION.
The Schindlers stand to lose the life of their daughter “by the direct legal
operation and effect of the judgment” in this case if the subject statute in this
litigation is ultimately declared unconstitutional. Florida courts have already granted
intervention to a ward’s parents or relatives who had much lesser interests in the
subject litigation that the Schindlers do in this case. For instance, the courts upheld
parents’ or relatives’ interests in their adult daughter’s legal assets, Chriss v. Chriss,
417 So. 2d 835 (Fla. 1st DCA 1982), in visitation of their grandchildren, In Re
Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991), and in adopting a child of a
relative, C.S. v. S.H., 671 So. 2d 260 (Fla. 4th DCA 1996). The Schindlers’ interest
in preserving the very life of their daughter is a much greater interest than the
interests in estate assets, visitations, adoptions, and the like, found sufficient in prior
cases. Because lesser interests were sufficient for intervention, the Schindlers’
interest in their daughter’s life is certainly sufficient in this case.
Specifically, in In re Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991),
the Florida Supreme Court found that the grandparents seeking to intervene to set
aside an adoption judgment were legally interested parties where the grandparents
15
acquired their legal interest under a New Jersey court order awarding them visitation
rights. Id. at 189. The rights of the grandparents were grounded in due
process/liberty interest protections: "An elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections." Id. The
Court held that such "legal interest clearly entitled the grandparents to notice of the
prospective adoption and standing to intervene in the [adoption] proceedings." Id.
See also Borden v. Borden-Moore, 818 So.2d 604, 606-07 (Fla. 5th DCA 2002)
(finding that an adult daughter possessed due process rights to participate in the
proceedings and was an "interested party under the statutes and consequently has
standing to seek a determination of her mother's capacity and to prosecute this
appeal").
Likewise, in Chriss v. Chriss, 417 So. 2d 835 (Fla. 1st DCA 1982), the court
held that a father of a 22-year-old mentally retarded daughter was entitled to intervene
in a guardianship proceeding, and therefore reversed the trial court's denial of
intervention. Id. at 838 ("it was an abuse of discretion to deny [father's] motion for
intervention"). Chriss involved an effort by the father and former husband to
intervene in a guardianship proceeding, appointing the former wife as the guardian
of the disabled adult daughter. The court found that "as the father of Julia [the
16
disabled adult daughter] and as the holder of assets of Julia, pursuant to the final
judgment of dissolution of the marriage between [Julia's parents], [the movant] had
an interest in the subject matter . . . to question the legality of the voluntary
guardianship proceeding." Id. at 837. Notably, in reversing the trial court's denial of
intervention, the Chriss court also noted that the judge's "order was perfunctory,
simply reciting [the ruling]. . . . The order does not make a specific finding or
adjudication that [could be the basis for the court's ruling]." Id.
If a grandparent's visitation rights suffice for intervention, certainly both
parents' interest in preserving the life of their daughter should suffice just as well.
Likewise, if a father's interest in the preservation of his adult daughter's assets is
sufficient for intervention, much more so is the parents' interest of preserving the life
of their daughter. To hold otherwise would, at a minimum, be to elevate form over
substance. See SEIU, Local 16 v. Public Emples. Rels. Comm'n, 752 So. 2d 569, 573
(Fla. 2000) (noting that denying deputy sheriffs the right to collective bargaining by
excluding them from the general class of "employees" because they were "appointed"
rather than "employed," "exalted form over substance" in contravention to the Florida
constitution); cf. App. at Tab 4 (November 7, 2003 order) ("the Schindlers' interest
is not legally sufficient") (emphasis added).
The Schindlers' legal interest has already been recognized by this Court in a
companion guardianship case. See Schindler v. Schiavo (In re Guardianship of
17
Schiavo), 792 So.2d 551 (Fla. 2d. DCA 2001) (Schiavo II). This Court in Schiavo II
held that the Schindlers were "interested persons who were entitled to appear in the
adversary proceeding and present their viewpoint." Id. at 557. The Court further
noted that "in this unusual context affecting the ward's due process interest in life, we
conclude that interested parties should have standing – not directly for themselves but
in the interest of the ward – to request relief from a judgment of a guardianship court
when the final order requires termination of life-prolonging procedures." Id. at 558.
No less of an interest is present in the case at hand. Declaring the challenged statute
unconstitutional will result in the suspension of the feeding and hydration currently
being given Terri. Her parents are interested parties whose viewpoint must be heard
in this litigation. Certainly, if an out-of-state order granting visitation rights to
grandparents in In re Adoption (discussed supra) suffices to grant intervention, then
an in-state order issued by this Court granting standing to the Schindlers in a
companion case should also suffice.
In Schiavo II, this Court relied upon the definition of "[i]nterested person"
found in Florida's probate statutes. See id. at 557 (citing 731.201 (21), Fla. Stat.
(1997)) (defining an "interested person" (in other words one having the right to
participate in the relevant proceedings) as "any person who may reasonably be
expected to be affected by the outcome of the particular proceeding involved"). This
standard is, of course, similar to the standard for granting intervention. The ruling of
18
this Court in the companion case, along with Florida statutes, provide sufficient
grounds to grant intervention.
Likewise, in J.R. v. R.M., 679 So. 2d 64 (Fla. 4th DCA 1996), the Fourth
District found that petitioners approved by the Department of Health and
Rehabilitative Services (HRS) as adoptive parents of a child had standing to intervene
into a proceeding instituted by the child's foster parents to adopt the child. Id. at 65.
The J.R. court found that under such circumstances, petitioners' "interest [was] direct
and immediate; their interest would be directly and adversely affected by the outcome
of the foster parents' pending adoption proceeding." Id. Similarly, in C.S. v. S.H.,
671 So. 2d 260 (Fla. 4th DCA 1996), the Fourth District held that a child's relatives,
who were also approved as the child's adoptive parents, were properly granted leave
to intervene in an analogous situation. Id. at 265. The instant case is even more
compelling, as the intervenors here are the natural and legal parents of the patient,
whose life is at stake in the outcome of this litigation, and who desire to become her
legal guardian.
The relief sought by the Petitioner in this case includes invalidation of the
Public Law that authorized the resumption of the feeding and hydration of Terri – the
incapacitated daughter of Appellants – as well an injunction restraining the
application of the Law to sustain Terri's life. Appellants therefore, as Terri's parents,
have a stake in this action, including due process and liberty interests, of such a direct
19
and immediate character that they will either gain or lose by the direct legal operation
and effect of the judgment. See, e.g., Chriss v. Chriss, 417 So.2d 835 (Fla. 1st DCA
1982) (holding that it was an abuse of discretion not to permit father to intervene for
the purpose of challenging appointment of guardian for adult retarded daughter).
Appellants stand to gain or lose the life of their daughter, and potential ward,
depending on the outcome of this litigation, and leave to intervene thus should be
granted.
As the Court stated in Schindler II in a related context, a “final order entered
in a guardianship adversary proceeding, requiring the guardian to discontinue lifeprolonging
procedures, is the type of order that may be challenged by an interested
party at any time prior to the death of the ward on the ground that it is no longer
equitable to give prospective application to the order.” Schindler v. Schiavo (In re
Guardianship of Schiavo) (“Schiavo II”), 792 So. 2d 551, 553 (Fla. 2nd DCA 2001)
(emphasis added). The Schindlers have been found to be interested parties in that
case. Id. at 557. But, to acknowledge that the Schindlers are interested parties in the
guardianship case, able to challenge any order discontinuing life-prolonging
procedures at any time prior to the death of their daughter, while holding that they are
somehow not interested parties in this case, and are therefore unable to challenge any
order here which may likewise lead to the death of their daughter, is illogical.
20
In short, the Schindlers are clearly an interested party to this case, who are
pursuing the guardianship of their incapacitated daughter in a related proceeding and
who wish to defend a statute against a judgment the operation and effect of which
may result in their daughter’s death. This Court should therefore reverse the lower
court's orders denying intervention, and order that the Schindlers' intervention be
granted.
B. APPELLANTS' INTERVENTION WILL ADDRESS ISSUES
THAT ARE PART OF THE LITIGATION AND WILL NOT
DELAY OR DISRUPT THE PROCEEDINGS, NOR CAUSE A
DISADVANTAGE TO ANY PARTY.
Appellants in this case are willing to, and shall, abide by the applicable
conditions to intervention under Florida law. Appellants agree, as they did before the
trial court, to come into this case as it exists and to take the pleadings and issues as
they find them, and agree to be bound by the pleadings and issues as framed. See Bay
Park Towers Cond. Ass'n v. H.J. Ross & Assocs., 503 So. 2d 1333, 1335 (Fla. 3rd
DCA 1987) (intervention is proper where the intervenor "agreed to be bound by the
pleadings and issues as framed"). Therefore, ordering that Appellants' intervention
be granted in this case will not "in any way delay or disrupt the proceedings or cause
a disadvantage to any party." Id.
Further, case law states that "the interest must be that created by a claim to the
demand in suit or some other part thereof." Carlisle, 593 So.2d at 507. The interests
21
of Appellants are certainly a part of the instant litigation. First, the resolution of the
challenge to the statute and stay are such that the "intervenor will either gain or lose
by the direct legal operation and effect of the judgment." Id. Further, the Petition for
Declaratory Injunction ("Petition") includes the precise issues relating to the parents'
interests in the constitutionality of the statute and of the cessation of the feeding and
hydration to Terri. See, e.g., Petition ¶ 7(F) ("[statute] violates a patient's right to
equal protection of the law because it singles out patients with family members, or
patients with disagreeing family members, as persons whose medical treatment
wishes can be disregarded"); ¶ 7(I) ("[i]f [the statute is] applied to the ward, it
diminishes her right to refuse medical treatment [food and water] because of her
incapacity"); ¶ 9 ("ward will suffer irreparable harm if a temporary injunction is not
issued; [h]er right to privacy will be violated, her physical person will be invaded
against her will, and her death process will be interrupted and prolonged").
Allowing the Schindlers to intervene in the current case will bring no prejudice
to either party; not permitting them to intervene will, at a minimum, deprive the
Schindlers of their input regarding issues affecting the life of their child, and, at a
maximum, may violate their constitutional rights to be heard. Terri's parents have a
strong interest in the outcome of this case, as the life of their child may be dependent
upon the constitutionality of the challenged statute.
22
For these reasons, this court should reverse the trial court and order that
Appellants' intervention be granted.
IV. THE TRIAL COURT'S FAILURE TO EXPLAIN ITS DENIAL IS
ALONE SUFFICIENT FOR REVERSAL AND REMAND.
In its November 4, 2003, order, the trial court stated that it “finds that . . . the
Schindlers do not have a sufficient legal interest in the narrow subject of this
litigation that would justify formal intervention.” App. at Tab 2, ¶ 5. The trial court,
however, did not explain this finding. The court did not specify the reasons why the
Schindlers, in its opinion, do not stand to gain or lose by the direct legal operation
and effect of the judgment. Id. Likewise, the trial court's November 7, 2003 order
denying rehearing does not explain why Appellants would not satisfy the
requirements for intervention, but merely restates the November 4, 2003 order.
Under Florida law, as well as that of other jurisdictions, a trial judge must
specify the basis for the court's findings and conclusions in a case. Failure to do so
subjects a trial court’s decision to vacation and remand. See, e.g., Wolfe v. Nazaire,
758 So. 2d 730, 731-732 (Fla. 4th DCA 2000). In Wolfe, which involved a dispute as
to an award of attorney fees in a negligence action, the appellate court held that “the
trial court abused its discretion in enhancing the fee it awarded where it failed to state
the grounds for enhancement” and “did not explain its reasons for the use of a
multiplier.” Id. The Wolfe court also noted that the trial court “additionally did not
23
have sufficient evidence before it to support such an award.” Id. The appellate court
therefore reversed and remanded the trial court’s order.
Similarly, in Cifrian v. Cifrian, 715 So. 2d 1068, 1070-71 (Fla. 4th DCA 1998),
the trial court was reversed and remanded in a divorce and alimony proceeding, where
the court did not explain its reasons for the amount of the alimony award and did not
consider certain factors in determining the amount of child support. Id. As stated by
the Fourth District, the trial court “did not indicate the basis for its determination of
the former husband’s income.” Id. The appellate court therefore held:
Because the order is unclear as to the basis for the parties’ incomes, we
reverse the alimony award and remand for the trial court to either make
the appropriate findings or reconsider the alimony scheme.
Id. Thus, where a trial court’s order did not express the basis for the court’s findings,
the order was reversed and remanded. Id. at 1071. In addition to situations such as
those discussed above, trial judges are also required to provide more that conclusory
statements in other contexts, such as, for instance, criminal sentencing orders. See,
e.g., Ferrell v. State, 653 So. 2d 367, 371 (Fla. 1995) (finding sentencing order
inadequate where it was made up solely of conclusory statements).
In the instant case, the trial court's orders do not specify the reasons why the
Schindlers, in the trial judge's opinion, do not stand to gain or lose by operation and
effect of the final judgment in this case, and thus the orders provide no basis for a
finding that the Schindlers would not satisfy the standard for intervention. The trial
24
judge's statement that “there are no significant factual issues to be developed that
might be impacted by [the Schindlers’] presence as a party,” Order at ¶ 4, in addition
to being unsupported by the record, certainly does not explain why the intervention
standard is not met in this case. As discussed previously, this statement has no
bearing on the correct standard for intervention in this case.
Likewise, the trial court's observation that the Schindlers can file an amicus
curiae brief, id. ¶ 5, certainly is not a reason why the Schindlers would not satisfy the
intervention standard. If intervention were denied every time a party can participate
as an amicus, interventions would rarely, if ever, be granted. But Florida’s liberal
standard regarding who may be involved in litigation points to just the opposite:
Florida courts “allow joinder of all parties having an interest in a controversy.” Ding,
667 So. 2d at 897. The Schindlers certainly have an interest in the present
controversy, as they stand to lose the life of their daughter by the direct legal
operation and effect of the final judgment as to the constitutionality of the subject
statute. As discussed above, the Schindlers' status as an amicus is grossly
insufficient to preserve and advance such interest.
One court has addressed an analogous situation of an abuse of discretion in the
context of a denial of a leave to amend a pleading. The court addressed a trial court’s
failure, just as in the instant case, to provide specific bases for the trial court’s
conclusions as follows:
2 The trial judge apparently believes that his denial of intervention is not
subject even to an abuse of discretion review, i.e., that his discretion is limitless and
can never be abused: "even if the Court did find that the Schindler's [sic] interest was
sufficient to support intervention, intervention is a matter of the Court's discretion."
App. at Tab 4 (November 7, 2003 order). Although intervention is within the trial
court's discretion, that discretion can be abused, as happened in this case, which fact
is amply illustrated by Appellants herein.
25
The district court’s opinion invokes the permissible ground of futility,
but provides no explanation of why the appellants’ specific claims are
futile beyond the overly broad speculation that the challenged
regulations will survive any conceivable standard of review. When a
district court denies a motion to amend, it must do more than name a
reason; it must explain its reason and that reason must be sufficient.
Henderson v. Stanton, 1998 U.S. App. LEXIS 30884, 4-5 (D.C. Cir. 1998). The
appellate court therefore “reversed and . . . remanded” the trial court’s order. Id. at
*2. Just as in Henderson, since in the instant case the trial “court did not explain its
reason in this case,” id., its orders denying the Schindlers’ motion to intervene and
motion for rehearing are subject to reversal and remand. The trial court in this case
also “must do more than name a reason; it must explain its reason and that reason
must be sufficient.” Id. at *4-5. The trial court did not specify any such reason in its
November 4, 2003 and November 7, 2003 orders denying the Schindlers’ motion to
intervene and motion for rehearing.2 Therefore, the trial court's decision should be
reversed and remanded.
26
CONCLUSION
For the foregoing reasons, Appellants Robert and Mary Schindler respectfully
request that this Court reverse and remand the lower court's decision denying
Appellants' intervention in the instant case, and order that Appellants' intervention be
granted.
Respectfully submitted this ____ day of December, 2003.
AMERICAN CENTER FOR PATRICIA FIELDS
LAW AND JUSTICE ANDERSON, P.A.
________________________
Jay Alan Sekulow* Patricia Fields Anderson
James M. Henderson, Sr.* Fla. Bar No. 352871
Walter M. Weber* SPN 00239201
David A. Cortman* 447 3rd Avenue North, Ste. 405
201 Maryland Avenue, NE St. Petersburg, FL 33701
Washington, DC 20002 (727) 895-6505
(202) 546-8890 (727) 898-4903 fax
(202) 546-9309 fax
*Motion pro hac vice filed contemporaneously herewith
ATTORNEYS FOR ROBERT AND MARY SCHINDLER
27
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
served this the ____ day of December, 2003, via overnight delivery upon the
following persons:
GEORGE J. FELOS, ESQ., GEORGE LEMIEUX, ESQ.
Felos & Felos Deputy General of the State of Florida
595 Main Street Office of Attorney General - PL01
Dunedin, Florida 34698 400 S. Monroe Street
Attorney for Petitioner Tallahassee, FL 32399-6536
THOMAS J. PERRELLI, ESQ. CHRISTA CALAMAS, ESQ.
ROBERT M. PORTMAN, ESQ. Assistant General Counsel for the Hon.
NICOLE G. GERNER, ESQ. Jeb Bush, Governor of Florida
Jenner & Block, LLC 400 S. Monroe Street, Suite 209
601 13th Street, NW, Ste. 1200 Tallahassee, FL 32399-6536
Washington, DC 20005
Cooperating Counsel with the ACLU
RANDALL C. MARSHALL, Legal Director
American Civil Liberties Union of Florida
4500 Biscayne Boulevard, Suite 340
Miami, FL 33137
KENNETH L. CONNOR
Counsel for Governor Bush
Wilkes & McHugh
One North Dale Mabry, Suite 650
Tampa, FL 33606
DON RUBOTTOM, Attorney for the Speaker
Florida House of Representatives
420 The Capitol, 402 S Monroe Street
Tallahassee, FL 32399-1300
_________________________
Patricia Fields Anderson
28
CERTIFICATE OF COMPLIANCE
I, Patricia Fields Anderson, hereby certify that this brief complies with the font
requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. This
brief is submitted in the Times New Roman 14-point font.
_________________________
Patricia Fields Anderson
SECOND DISTRICT COURT OF APPEALS
FOR THE STATE OF FLORIDA
CASE NO. 2D03-5200
ROBERT SCHINDLER and MARY SCHINDLER,
parents of THERESA MARIE SCHIAVO,
Appellants,
vs.
MICHAEL SCHIAVO, as Guardian of
the person of THERESA MARIE SCHIAVO
Appellee.
On Appeal from the Circuit Court for the Sixth Judicial Circuit
In and for Pinellas County, Florida, Circuit Civil Case No. 03-008212-CI-20
APPENDIX TO APPELLANTS' INITIAL BRIEF
AMERICAN CENTER FOR LAW AND JUSTICE
PATRICIA FIELDS ANDERSON, P.A.
Jay Alan Sekulow* Patricia Fields Anderson
James M. Henderson, Sr.* Fla. Bar No. 352871
Walter M. Weber* SPN 00239201
David A. Cortman* 447 3rd Avenue North, Ste. 405
201 Maryland Avenue, NE St. Petersburg, FL 33701
Washington, DC 20002 (727) 895-6505
(202) 546-8890 (727) 898-4903 fax
(202) 546-9309 fax
*Motion pro hac vice filed contemporaneously herewith
Attorneys for Appellants Robert and Mary Schindler
TABLE OF CONTENTS
Item
Tab
Letter of Judge W. Douglas Baird informing Appellants' counsel
that the Judge specifically invited written objections to intervention . . . . . . . . . . 1
Trial court's order of November 4, 2003, denying Appellant's
Verified Motion for Leave to Intervene . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 2
Appellants' Verified Motion for Leave to Intervene . . . . . . . . . . . . . . . . . . . . . . . . 3
Trial court's order of November 7, 2003, denying Appellants'
Motion for Rehearing and/or Clarification . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 4
Link to The American Center for Law and Justice Press Release:
http://www.aclj.org/news/pressreleases/031205_schiavo_appeals_court.asp
Bingo! Thanks so much for posting this! This is a masterpiece. ACLJ is to be commended for yet another pro life save. This is just wonderful.
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