Pinellas(sp?) county, anyway.
To my mind, what this case fundamentally shows is that there needs to be reform in the court system to limit the damage that one corrupt judge can do. The way the court system is set up, one judge can act as gatekeeper for all matters and evidence relating to a particular case; appeals courts are 99.44% bound to regard in the same light as the trial judge hearing the original case. If Terri had been brought into court, gotten up, and danced a jig but Schiavo had Doctor Nick Riviera testify that her dancing was merely "reflex", then if Greer chose to regard Doctor Nick's testimony as credible, appeals courts would be bound to do so as well.
I don't know what the best solution to this issue is, since there would typically be some value in having multiple related cases dealt with by the same judge rather than having to have different judges familiarize themselves with the case. But there needs to be some procedure by which judges which could be prejudiced against a particular person could be gotten around.
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. A denial of Terri’s right to life under these circumstances, it appears, results in a violation of Section 782.08.
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.
From: http://www.terrisfight.org/memorandum3.htm