Sekulow supports Gov. Bush, assists Schiavo’s parents

Nov 5, 2003
JONI B. HANNIGAN
Managing Editor

CLEARWATER (FBW)—Asking to intervene in a lawsuit that is expected to go before the Florida Supreme Court, the American Center for Law and Justice, filed a motion Oct. 30 in the Circuit Court for Pinellas County to intervene on behalf of the parents of Terri Schiavo, a 39-year-old brain damaged woman at the center of a national debate.

Oct. 29 Michael Schiavo, Terri Schiavo’s husband and legal guardian, filed a 44-page legal brief attacking "Terri’s Law" and asking the circuit court to overturn it as "unconstitutional."

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ACLJ Chief Counsel Jay Sekulow, in a statement to Florida Baptist Witness, defended the action taken by Florida lawmakers.

"It is clear the Governor has the constitutional authority to act to save the life of someone on death row," said Sekulow. "This case is no different. What the legislature and the Governor did is not only appropriate, but legally sound and constitutional as well. We are hopeful that the court will permit Terri’s parents to enter this case and we look forward to working with the Governor’s office and the state Attorney General to defend the life-saving actions of the state in court."

"Terri’s Law," as it is now called, is a bill passed by the Florida legislature Oct. 21 and signed into law by Florida’s Governor Jeb Bush. The legislation gave Gov. Bush the authority to order Terri’s feeding tube re-inserted in order to prevent her from dying by starvation and dehydration. Her feeding tube had been removed Oct. 15–against her parent’s wishes– at a judge’s order backing Michael Schiavo’s request for its removal.

The ACLJ, an international public interest law firm which specializes in constitutional law, asked the court to represent Robert and Mary Schindler in just one aspect of Schiavo V. Bush–the legal challenge to the constitutionality of the actions of Gov. Bush and the state legislature. Pat Anderson, a St. Petersburg, attorney, continues to represent Terri’s parents in all other aspects of the case.

"This is a very important case involving the state’s ability to act to protect human life," Sekulow told the Witness. "We believe the lawsuit is legally flawed and that both the legislature and the Governor are well within their constitutional authority to take actions to save the life of Terri Schindler Schiavo. We are asking the court to permit the parents to intervene on this legal challenge and we’re hopeful the court will agree."

The American Civil Liberties Union joined with Michael Schiavo’s attorney George Felos Oct. 29. Howard Simon, executive director of the ACLU of Florida, said in a statement: "Based on the precedent of this case, meddling politicians could set aside court order they don’t agree with and veto any decision made by a patient or family members."

Michael Schiavo has refused to let Terri’s parents have any say in her care or treatment for nearly a decade, after they had a falling out in 1994. According to court documents, it wasn’t until after he won a $1.2 million malpractice suit in 1993 that he testified that he remembered Terri saying she would not want to live in her condition.

Terri Schiavo did not leave any kind of written instruction or an advance directive, known as a "Living Will," indicating her wishes if she were incapacitated, but the courts have commonly deferred to the family’s wishes in such cases. For legal purposes, the spouse is typically first in line to issue instructions if the person is married, followed by any children and finally, the parents of the patient.

In the petition filed Oct. 29, Michael Schiavo also said "Terri’s Law" was "unconstitutionally vague" and required "that men of common intelligence must necessarily guess at its meaning and differ as to it application." On that basis, he asked the court for a permanent injunction to remove the feeding tube by which Terri receives nutrition and hydration.

Separate petitions on the issue of who should represent Terri Schiavo in legal proceedings were also filed Oct. 29 by lawyers representing Michael Schiavo and Terri Schiavo’s parents, Bob and Mary Schindler.

Gov. Bush’s Oct. 21 executive order called for a "guardian ad litem" to be appointed by the court. Pinellas Circuit Court Judge W. Douglas Baird Oct. 22 said he would appoint Jay Wolfson, both a medical doctor and a lawyer, who is a professor of health and law at Stetson University, to the role if an agreement could not be worked out between Michael Schiavo and the Schindlers’. Wolfson also works for the College of Public Health at Florida State University and the College of Medicine at the University of South Florida.

On Oct. 24, the Schindler attorney, Pat Anderson, filed a petition on behalf of the Schindlers which questioned Wolfson’s fitness for the appointment after he "demonstrated bias" towards Terri Schiavo by appearing on a news show that aired on WFTS, the local ABC affiliate, Oct. 22. Anderson said the Schindlers’ believe Wolfson expressed opposition to "Terri’s Bill" during the interview.

The Oct. 29 petition Anderson filed repeats the Schindler’s objection to Wolfson as guardian ad litem. Instead the petition proposes Mary Ann Quartetti, a local professional guardian, or any other guardian "who takes no stand on the advisability of ‘Terri’s Law,’" and is "willing to act as an advocate," and is already known to the court, would be the best choice to serve in that role.

Michael Schiavo’s attorney, Deborah Bushnell, who is handling the guardianship matter, asked in the Oct. 29 petition that the court "reconsider" its Oct. 22 order requiring the appointment of a guardian ad litem until such a time as the "constitutionality" of "Terri’s Law" is determined.

The petition filed by Felos warns "each day that the ward receives nutrition and hydration is a violation of, not only her expressed wishes, but her constitutional rights under the laws of the state of Florida and the United States."

The petition filed on behalf of the Schindlers argues, however, "Terri’s Law" is "presumptively constitutional" and asks that the scope of a guardian ad litem appointed by the court include: The authority to make recommendations ensuring Terri is "treated with all of the dignity and fairness to which she is entitled as a human being"; the authority to investigate whether it is in Terri’s best interest to divorce her husband; and determine whether her care during medical crises has been adequate.

In reference to the proposal of investigating whether Terri Schiavo would be best served by a divorce from her current guardian and husband Michael Schiavo–the petition states "he has abandoned their marital relationship in favor of a long-term adulterous relationship with another woman."

Michael Schiavo had admitted publicly he has a girlfriend whom with he has a child, though he told Larry King on Larry King Live Oct. 27 he has no plans to marry the woman. "I’m fortunate to have two women in my life that I love very much," Schiavo said.

Bill Bunkley, legislative consultant for the Florida Baptist Convention told Florida Baptist Witness he was awaiting a phone call from Gov. Bush’s office on the new developments in the case and that a statement could be forthcoming.

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