Posted on 10/16/2003 9:46:46 AM PDT by pollywog
John B. Thompson, Attorney 1172 South Dixie Highway, Suite 111
Coral Gables, Florida 33146-2750
October 16, 2003
The Honorable Jeb Bush Governor, State of Florida C/o Governor's General Counsel,
The Capitol Tallahassee, Florida Via Fax to 850-488-98
Re: Execution of Terri Schiavo is “Cruel and Unusual Punishment”
Dear Governor Bush:
I have been asked by the family of Terri Schiavo to do what I can to save her life in light of your request yesterday for assistance from legal counsel inside and outside your Administration toward that end.
Governor, you have the power, by the mere stroke of a pen, to prohibit what is, in every sense, the execution of Terri Schiavo by a means that is both cruel and unusual in violation of Article I, Section 17 of the Florida Constitution and the Eighth Amendment to the United States Constitution.
Death by dehydration and starvation is arguably the most brutal, inhumane, and pain-inducing way to kill any living creature. The United States Department of Agriculture in its own regulations at 9CFR2.131 prohibits the withholding of food and water from farm animals. Terri Schiavo is not less than a farm animal. If you, as Governor, were to order the execution of a serial killer on death row by means of withholding food and water, you would be ordered by any number of courts not to do so. The horror of dying by dehydration makes death by electric chair, by comparison, an act of compassion.
The fact that this woman is neither accused nor convicted of any crime makes absolutely no difference. In fact, the lack of criminality makes the execution even more cruel and unusual, for a criminal sanction is being imposed upon an innocent woman.
You have the power and the duty, under both the Florida and United States Constitutions, which you took an oath to uphold, to enter an Executive Order, today, to prohibit the imposition of any cruel and unusual punishment in this State. Upon entering such an Order, you then have the power, right, and duty to give force to that order by dispatching state law enforcement officials to take custody of Terri Schiavo and stop her forced starvation and dehydration.
Governor Bush, you do not need a court order to do any of this. No court at any level has the power to revoke the Florida and United States Constitutions. They cannot revoke your oath of office. You are an enthusiast of the James Madison Institute, and as such you know that the Executive branch of government is co-equal with the other two branches. No judge has the power to elevate the judicial branch over the executive branch thereby abrogating your state and federal constitutional duties and powers.
On behalf of the family of this innocent woman, and with all respect for the responsibilities of your office, we ask that you act immediately.
Respectfully, Jack Thompson
Thanks for the info shhrubbery!! I have it on waiting now.
This is great news!
Now I pray Jeb Bush acts on this advice before time runs out.
To: Christa Calamas, Esq.
From: Brian Fahling, Esq.
Re: Authority of Governor Bush to Issue Executive
Order Date: October 16, 2003
Question 1: Does Governor Bush have authority to issue an executive order pursuant to Section 943.04(2)(a), Florida Statutes (2002) to order the Department of Criminal Justice Investigations and Forensic Science to conduct an investigation of an alleged violation of Section 782.08 Florida Statutes (assisted suicide)?
Question 2: Would such an order under the circumstances of the present case constitute an intrusion of the executive branch into, or create a conflict with, the lawful authority of the judicial branch?
DISCUSSION
I. Authority To Issue Executive Order The governor of the State of Florida possesses authority under the Florida Constitution, Article IV, Section 1(a), to see that the laws are faithfully executed. Section 943.04 authorizes the governor, upon written order, to direct the Department of Criminal Justice Investigations and Forensic Science (“Department”) to “investigate violations of any of the criminal laws of the state.” In Thompson v. State, 342 So.2d 52 (Fla. 1976), the Florida Supreme Court upheld the authority given to the governor under Section 943.04, saying “[t]he power to see that laws are faithfully executed, which is essentially what Chapter 943 is designed to achieve, derives from Article IV, Section 1(a) of the Florida Constitution.” Thompson at 55.
The brief filed by the Governor in the Middle District of Florida sets forth significant reasons to believe that Section 782.02 is being violated because “Terri’s right to life is violated by the state when the state, acting as her guardian, assumes that her wish to live without artificial sustenance is the same as a wish not to be fed at all. The state has an ‘unqualified’ interest in life.” Brief at 5. Moreover, Terri is being denied oral sustenance, which creates “an unnecessary conflict with Florida Statutory law by implying that physicians may cooperate with a person’s alleged express wish not to feed herself . . . .” Id. at p. 6. law
The laws of the State of Florida, then, as set forth in the Governor’s brief, are not being faithfully executed. The authority of the governor to issue an executive order in this case is consonant with his duty to see that the laws are faithfully executed.
II. An Executive Order Does Not Impugn the Authority of the Court
The trial court order merely authorized Terri’s husband to direct that oral sustenance be denied her. An executive order that orders an investigation in this matter, with the concomitant appropriate actions that would be taken if a violation of Section 782.08 is found, does nothing to impugn the authority of the court. The executive order would ultimately operate only upon the husband’s decision which he is merely permitted to make. It is interference with private discretion, not with judicial authority. If the consequences of the husband’s exercise of discretion are determined to result in the unlawful taking of life, it is entirely appropriate that such actions be interdicted by law enforcement at the direction of the governor.
Mike
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