Appeals court ruling favors Terri Schiavo's parents

Boston Glob ^ | 1/13/04 | staff

[CFW]

Appeals court ruling favors Terri Schiavo's parents

The Associated Press Published on: 02/13/04

TAMPA, Fla. -- Gov. Jeb Bush and the parents of a severely brain-damaged woman won two appellate court victories Friday in their quest to keep her alive against her husband's wishes.

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.

The appeals court also ruled that Pinellas Circuit Court Judge W. Douglas Baird did not follow judicial rules when he denied her parents, Robert and Mary Schindler, the ability to intervene in the constitutional challenge to the law.

The appeals court ordered Baird to hold further proceedings on the issue.

Schiavo's husband, Michael, has been battling the Schindlers in court for years to remove Terri's feeding tube so she can die. He says she would not have wanted to be kept alive artificially.

The Schindlers doubt their 40-year-old daughter, who lives in a Clearwater nursing home, had any such end-of-life wishes and believe her condition could improve with therapy. Their daughter has been in a persistent vegetative state for more than 13 years after collapsing from a chemical imbalance.

[nicmarlo]

Thanks for your stroll along memory lane....to my surprise, I remembered everything you posted (how in the world you remembered them before posting is incredible, given the thousands of posts we all have read, kudos, FL), except this one:

there was also this from November: GOVERNOR ASKS THAT JUDGE IN RIGHT-TO-DIE CASE BE DISQUALFIED (Judge Baird)

(The law says any litigant can ask ONE TIME for a new judge in a case, without cause, if there is even a SUSPICION of bias; and the judge has NO CHOICE but to grant this the 1st time. But Baird was so adamant that HE ALONE must decide this case, that he dismissed the Governor's request)

I didn't realize the law gives the right to a litigant to ask, one time, for a new judge. Wow.... this makes what Baird did (outright denying the motion), IMO, yet ANOTHER appealable issue for Bush, if Baird stays on the case.

I believe Bush could use this denial in an appeal, if Baird remains on the case to the end, if any unfavorable final decision/order by Baird is reached (another ace in the whole upon which to appeal, at the conclusion of this case......).

[tutstar]

I think that after reading so much that some things are sticking in our minds. FL_Engineer has done a tremendous amount of research. I really would appreciate it if it is compiled in one file if you would freepmail it to me.I for one have repeated them many times to folks, sometimes to strangers in the grocery store! LOL
Floridians better wake up quick!!

As for Jim King I think he may be PVS because he is totally unaware of the concerns of the voters in his area!!

Where did you find that info about litigant being allowed to ask for a new judge once?

[tutstar]

I think that Sen King is not the only one concerned about his legacy! With Felos squawking about this case he probably has the judges drooling over the publicity they will have as a result of their rulings.

[cyn]

that is indeed good news, Republic -- thanks to you (and others!) for the ping to this info.

[Just mythoughts]

Thanks for the update. Judges have become "gods".

[tutstar]

Here is part of MS testimony in the malpractice trial

http://www.terrisfight.org/change.html#November%201992%20Testimony%20of%20Michael%20Schiavo,%20Medical%20Malpractice%20Trial

November 1992
Testimony of Michael Schiavo, Medical Malpractice Trial

Q. Why did you want to learn to be a nurse?
MS. Because I enjoy it and I want to learn more how to take care of Terri.

Q. You're a young man. Your life is ahead of you. When you look up the road, what do you see for yourself?
MS. I see myself hopefully finishing school and taking care of my wife.

Q. Where do you want to take care of your wife?
MS. I want to bring her home.

Q. If you had the resources available to you, if you had the equipment and the people, would you do that?
MS. Yes, I would, in a heartbeat.

Q. How do you feel about being married to Terri now.
MS. I feel wonderful. She's my life and I wouldn't trade her for the world. I believe in my marriage vows.

Q. You believe in your wedding vows, what do you mean by that?
MS. I believe in the vows I took with my wife, through sickness, in health, for richer or poor. I married my wife because I love her and I want to spend the rest of my life with her. I'm going to do that.

[top]

(Note: In January of 1993, a jury awarded Michael $350,000 for loss of consortium, and $750,000 went into a medical trust for all of Terri's future rehabilitative care, which was based on the testimony of Michael stating that he wanted to care for Terri for the rest of his life. If Terri should die, Michael would inherit the balance of the trust fund. Not only did Mr. Schiavo not provide Terri with rehabilitation, he has denied his wife any and all therapy, against Doctors' recommendations, since the 1993 malpractice award.)

[JOHN W K]

I think I remember reading an article in the St.Pete Times that Judge Baird will keep Terri's case because he is familiar with it. I have tried to locate the article but have not yet had any luck. I could be wrong but as I recall I remember being disappointed that Baird was not off the case!

[Theodore R.]

It does sound as if the popular liberal Republican Jim King may have timed his anti-Terri remarks all wrongly. If the new judges let Terri live and gain rehabilitation, King could be forever disproved in the eyes of gullible voters. He would have been better served politically -- assuming he does want Terri dead -- to have kept his mouth shut. Now he has angered those he pleased last summer by going along with Speaker Byrd and Terri's Law. He is leaving the Senate presidency next January under normal rotation in Tallahassee. And Baird may or may not be off Terri's case: I am still unsure about that point. We know that Baird wants her dead as much as Greer and Demers did. We just don't know why these "eminent" judges want to kill a disabled person even as they proclaim their support for the disabled.

[Theodore R.]

This remains a confusing matter. Felos says that we have misinterpreted the appeals court's decision. All it is asking for, according to the liberal Felos, is for Baird to provide additional evidence for his rulings. Baird has not yet declared Terri's Law unconstitutional, but he will do so as soon as the appeals court allows him to do so. Maybe this decision does not really help Terri, at least according to the liberal Felos.

[tutstar]

You can read the court rulings ......
http://www.2dca.org/february1304.htm

There were some issues of fact which were in dispute between the litigants and before the circuit court could have issued a protective order they should have settled the disputed issues.

The end of this ruling stipulates "if" any future protective order (from deposing witnesses) is issued that the cc will have to make a ruling based on "finding of facts" and case law to support it!

I think we are seeing Felos' spin in full bloom. He must rally the pro-death group to come to their aid because surely they are expecting another onslaught of public support for Terri.

(note: I'm no expert but I think I can read English pretty well LOL someone please correct me in my assessment if I am wrong)
snips from Bush v Schiavo

9 references of case law as to the discovery issue-----
"Florida courts have disapproved the
entry of protective orders prohibiting the taking of depositions generally and orders providing for lengthy postponements of discovery."

"Mr. Schiavo's legal argument in support of his motion
for protective order did not address the propriety of precluding inquiry into such factual
matters that may pertain to the effect and operation of chapter 2003-418 and, therefore,
did not demonstrate good cause to support the issuance of the protective order."

"- 6 -
The circuit court entered the protective order without resolving the parties'
arguments on these issues. The circuit court, observing that the parties had not fully
briefed the matter, expressed a desire for the parties to revisit the question of whether
to allow the Governor to conduct any discovery at the time the parties presented arguments
on Mr. Schiavo's motion for a summary judgment determining chapter 2003-418
to be unconstitutional. However, the circuit court had to make two determinations
before it could conclude that there were no "identifiable disputed material facts" so as
to justify its finding of good cause. First, it had to make a determination of the propriety
of inquiry into the statute's impact on Mrs. Schiavo and other factually based aspects
of the constitutional challenge to chapter 2003-418. Second, it had to make a determination
of the propriety of any further inquiry into facts adjudicated in the guardianship
proceeding. The omission of these necessary steps left the finding of good cause bereft
of any support other than the conclusory assertion of Mr. Schiavo's counsel that the
proposed depositions lacked relevance. This conclusory assertion was insufficient to
demonstrate good cause warranting the entry of a protective order. This error is not
remediable on appeal because there is no practical way to determine after judgment
how the denial of the right to depose alleged material witnesses would have affected
- 7 -
the outcome of the declaratory judgment action. Accordingly, we grant the petition for
writ of certiorari and quash the trial court's order granting protective order.
To facilitate review of any protective order that may be entered in the
future, the trial court is directed to include within its order a recital of the findings of fact
and conclusions of law upon which the order is based.
Petition for writ of certiorari granted.
FULMER and DAVIS, JJ., Concur."

[nicmarlo]

As for Jim King I think he may be PVS because he is totally unaware of the concerns of the voters in his area!!

Let's hope is he voted out, along with all the scum judges in Florida (I am also thinking of the judge who ruled on the case where the man recently killed that poor little girl, Carla).

[nicmarlo]

The omission of these necessary steps left the finding of good cause bereft of any support other than the conclusory assertion of Mr. Schiavo's counsel that the proposed depositions lacked relevance. This conclusory assertion was insufficient to demonstrate good cause warranting the entry of a protective order. This error is not remediable on appeal because there is no practical way to determine after judgment how the denial of the right to depose alleged material witnesses would have affected the outcome of the declaratory judgment action. Accordingly, we grant the petition for writ of certiorari and quash the trial court's order granting protective order. To facilitate review of any protective order that may be entered in the future, the trial court is directed to include within its order a recital of the findings of fact and conclusions of law upon which the order is based.

We'll be watching you......you made a huge mistake, Baird, HUGE. Better follow the Rules of Civil Procedure!

[tutstar]

Please see nic's post 232

HaHaHa

So the Circuit Court made their ruling based soley on the assertions of Mr. Schiavo's counsel, right?

Don't you know MS et al are squirming like worms on a hook right now?

[Budge]

If noone attended to Terri, she'd be dead.

So, by your logic, that means any baby should be allowed to die?

How about this. YOU are injured in an accident. You lose both hands. Since you are dependent on someone else to feed you, bathe you, cloth you, take you to the bathroom, etc. then you should be starved to death?

[tutstar]

this ACLJ press release from terrisfight states the case goes back to Baird for further proceedings

http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20040213005436&newsLang=en

Florida's 2nd District Court of Appeal today ruled that Pinellas Circuit Court Judge W. Douglas Baird did not follow judicial rules when he denied an ACLJ motion in November 2003 on behalf of the Schindlers to intervene in the case. The appeals court ruled that Judge Baird's order be reversed and sent the case back to him "for further proceedings."

[Budge]

...suggestions on how I can help in the plight of Terri.

Talk to people. Explain Terri's plight and how, if left unchecked, anyone who is disabled, infirmed, unable to care for themselves, or just "in the way" can become very dead because of a "judges" decree.

WRITE to those involved, Jeb Bush, the "judges" (even Feelouse himself, if you wish.)

Don't tell them what you 'feel,' but what you KNOW to be right!

[Bronco_Buster_FweetHyagh]

If noone attended to Terri, she'd be dead.

So, by your logic, that means any baby should be allowed to die?

How about this. YOU are injured in an accident. You lose both hands. Since you are dependent on someone else to feed you, bathe you, cloth you, take you to the bathroom, etc. then you should be starved to death?

I think you missed the point due to not reading the original posts the led up to my response. I am not saying anything about whether I think she should or should not be kept alive. I'm just saying that people need to use appropriate language, because when someone says he's "trying to kill her" as opposed to he wants to "stop keeping her alive" they lose all credibility.

There's nothing artificial about keeping a baby alive - that's our job! But someone who has been in Terri's condition for 13 years or however long, that's nothing even remotely similar to raising a child. That's keeping someone alive, and the decision on whether or not to do so is a complicated one.

[floriduh voter]

From www.renewamerica.us

[phenn]

What is keeping Terri alive is simple food and water. Much like you and I. The method of delivery shouldn't be considered an out for withholding it. A member of my immediate family received assisted nutrition and hydration for nearly a year because of complications of surgery. If you told me then that this was 'artificial life support', I'd have given you quite a good fight over it.

It's food, dude. Nothing high-tech. Just given in a different fashion.

[floriduh voter]

A troll is somebody who comes to Free Republic to stir up trouble and they start out their tenure here by being friendly at first and then their objectives become obvious; i.e. They are dem underground people or from Terri's husband or her his law office, (the anti-Terri people have volunteers too).

Remember I stated you were a newbie, potential troll but I didn't call you a troll. But, you were so nice, that's usually what trolls do first. Being a newbie isn't all bad either unless the newbie is a combo deal newbie/troll.

Enjoy your new p.c. floriduh voter

If you were a MEAN NEWBIE, here's a post for those but not meant for you. Someone provided this to me and I am providing it for illustration only, not my personal opinion.