IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL CASE NO CI-20

Transcription

1 IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL CASE NO CI-20 MICHAEL SCHIAVO, as Guardian of the person of THERESA MARIE SCHIAVO vs. Petitioner, JEB BUSH, Governor of the State of Florida, and CHARLIE CRIST, Attorney General of the State of Florida, Respondents, AMICUS CURIAE BRIEF OF TERRY SCHIAVO S PARENTS MARY AND ROBERT SCHINDLER SUPPORTING RESPONDENTS AMERICAN CENTER FOR LAW AND JUSTICE PATRICIA FIELDS ANDERSON, P.A. Jay Alan Sekulow* Patricia Fields Anderson James M. Henderson, Sr.* Fla. Bar No ; SPN Walter M. Weber* 447 Third Avenue North David A. Cortman* Suite Maryland Avenue, NE St. Petersburg, FL Washington, DC (727) (202) (727) fax (202) fax *Admitted pro hac vice Attorneys for Amici Robert and Mary Schindler

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv INTRODUCTION...1 I. PETITIONER BYPASSES ESSENTIAL REQUIREMENTS OF THE LAW....3 A. The Constitutionality of a Legislative Enactment Should Not Be Decided Absent Sufficient Development of the Record....3 B. Any Enactment by the Legislature Is Presumed Constitutional....4 II. PUBLIC LAW DOES NOT VIOLATE TERRI S RIGHT TO PRIVACY, BUT RATHER SAFEGUARDS BOTH HER RIGHT TO PRIVACY AND HER RIGHT TO LIFE....6 A. Public Law Does Not Even Implicate the Scope of the Right to Privacy under the Florida Constitution, Much Less Infringe That Right....6 B. The Legislature Has the Power to Prescribe the Procedures by Which Fundamental Rights Are Exercised, in Addition to Possessing the Authority to Modify Existing Statutory Law....8 III. IN ADDITION TO LEAVING THE PRIVACY RIGHT INTACT, PUBLIC LAW IS JUSTIFIED BY THE COMPELLING STATE INTEREST IN SAFEGUARDING BOTH THE RIGHT TO PRIVACY AND THE RIGHT TO LIFE. 11 A. There is a Compelling Interest in Safeguarding the Right to Privacy...11 B. There is a Compelling Interest in Safeguarding the Right to Defend Life, in Preventing Suicide, Protecting Third Parties, and Preserving the Integrity of the Medical Profession IV. PUBLIC LAW IS NARROWLY TAILORED TO SERVE THE COMPELLING INTEREST IN PRESERVING THE RIGHTS OF PRIVACY AND LIFE V. PUBLIC LAW AND EXECUTIVE ORDER DO NOT VIOLATE, BUT RATHER RESPECT, THE SEPARATION OF POWERS A. The Law and Order Here Do Not Interfere with the Court s Final Judgment...19 B. The Governor, along with the Legislature, Has the Inherent Authority to Commute a Sentence of Death, Which Is Legally Indistinguishable from the Current Situation ii

3 C. The Separation of Powers Must Be Respected by All Branches of Government. 23 VI. PUBLIC LAW DOES NOT VIOLATE EQUAL PROTECTION GUARANTEES VII. PUBLIC LAW IS NOT AN UNLAWFUL BILL OF ATTAINDER VIII. PUBLIC LAW IS NOT AN INVALID SPECIAL LAW IX. PUBLIC LAW IS NOT UNCONSTITUTIONALLY VAGUE CONCLUSION...34 REQUEST FOR ORAL ARGUMENT...35 iii

4 TABLE OF AUTHORITIES State Cases Browning v. Herbert, 568 So. 2d 4 (Fla. 1990) Coalition for Adequacy and Fairness v. Chiles, 680 So.2d 400 (Fla. 1996)...23, 24 Department of Health & Rehab. Servs. v. A.S., 648 So. 2d 128 (Fla. 1995)...33 Dep t of Business Regulation v. Classic Mile, Inc., 541 So. 2d 1155 (Fla. 1989)...30 Estate of Corbin v. Sherman, 645 So. 2d 39 (Fla. 1 st DCA 1994)...9 Fraternal Order of Police ( F.O.P. ) v. Dep t of State, 392 So.2d 1296 (Fla. 1980)...5, 25, 27 Goode v. Wainwright, 448 So.2d 999 (Fla. 1984)...22, 23 Hamilton v. State, 366 So.2d 8 (Fla. 1978)...27 Homeowner s Corp. of River Trails v. Saba, 626 So. 2d 274 (Fla. 2d DCA 1993)...3 In re Estate of Olson, 181 So. 2d 642 (Fla. 1966)...9 In Re Guardianship of Schiavo ( Schiavo IV ), 851 So.2d 182 (Fla. 2 nd DCA 2003)...2, 34 In re Guardianship of Browning, 543 So. 2d 258 (Fla. 2 nd DCA 1989)...9, 11 J.A.S. v. State, 705 So. 2d 1381 (Fla. 1998) John F. Kennedy Memorial Hosp. v. Bludworth, 432 So. 2d 611 (Fla. 4th DCA 1983)...10 Kravinek v. The Take Back Tampa Political Committee, 625 So.2d 840 (Fla. 1993)...8 Krischer v. McIver, 697 So. 2d 97 (Fla. 1997)... 12,14-15, 25 Lane v. Chiles, 698 So.2d 260 (Fla. 1997)...4 Lasky v. State Farm Insurance, 296 So.2d 9 (Fla. 1974)...5, 24, 25 Mayes v. Moore, 827 So. 2d 967 (Fla. 2002)...28, 30 Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989)...12 iv

5 Schindler v. Schiavo (In re Guardianship of Schiavo) ( Schiavo II ), 792 So. 2d 551 (Fla. 2 nd DCA 2001)...14, 20 Schindler v. Schiavo ( Schiavo I ) 80 So. 2d 176 (Fla. 2nd DCA 2001)...6, 27, 34 Schrader v. Fla. Keys Aqueduct Auth., 840 So. 2d 1050 (Fla. 2003)...30, 31 Shaktman v. State, 553 So. 2d 148 (Fla. 1989)...12, 16, 17 State ex rel. Citizens Proposition for Tax Relief v. Firestone, 386 So. 2d 561 (Fla. 1980)...8 State v. Brake, 796 So. 2d 522 (Fla. 2001)...33 State v. Fuchs, 769 So. 2d 1006 (Fla. 2000)...32, 34 State v. Kinner, 398 So.2d 1360 (Fla. 1981)...4 State v. Leavins, 599 So. 2d 1326 (Fla. 1992)...31 State v. Wershow, 343 So. 2d 605 (Fla. 1977)...33 Federal Cases City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) Cruzan v. Director, Missouri Dep t, 497 U.S. 261 (1990)...10, 12 Frisby v. Schultz, 487 U.S. 474 (1988)...17, 18 In Re Grand Jury Subpoena, 150 F.3d 170 (2 nd Cir. 1998)...13 Miller v. French, 530 U.S. 327 (2000)...19, 20 Planned Parenthood Ass n v. Ashcroft, 462 U.S. 476 (1983)...13 Plaut v. Spendthrift Farm, 514 U.S. 211 (1995) Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) Solesbee v. Balkcom, 339 U.S. 9 (1950)...22 Ward v. Rock Against Racism, 491 U.S. 781 (1989)...17 Zablocki v. Redhail, 434 U.S. 374 (1978)...25, 26 v

6 Constitution and Statutes Fla. Const. Art. I, , 13 Fla. Const. Art. I, Fla. Const. Art. II, Fla. Const. Art. III, Fla. Const. Art. III, Fla. Const. Art IV, Fla. Stat (1990)...13 Fla. Stat Fla. Stat (2003)...22 Public Law passim. vi

7 COME NOW Robert Schindler and Mary Schindler, parents of Theresa Marie Schiavo ( Terri ), and as amici curiae, file this brief in opposition to Petitioner s request for a declaratory judgment and permanent injunction striking down Public Law (House Bill 35-E) ( Law or Statute ) and the Executive Order ( Order ) issued pursuant to its authority. 1 INTRODUCTION At the outset, it is important not to rush to judgment in this case because what is at stake is nothing less than the life of Terri Schiavo. Petitioner seeks to fast-track this case; a case that should not be rushed through the system. Petitioner has previously filed a request for a Temporary Injunction to enjoin the challenged Statute, thereby allowing Petitioner to remove Terri s feeding and hydration. The obvious result of such injunctive relief would be to allow Petitioner to move forward with his legal efforts to end Terri s life. Terri, though, is not dying (as long as she is given food and water, of course), nor is she suffering from cancer or any such debilitating disease. She has suffered brain damage but remains physically healthy. Thus, this case is not one in which a decision is being made not to prolong a dying person s life a few extra months. Instead, this Court is presented with a case in which the real party in interest, the Schindlers daughter, Terri, has an extended life expectancy of many years to 1 On November 4, 2003, this Court denied the Schindlers motion to intervene in this proceeding, but allowed them to participate as amici. See Order on Robert and Mary Schindler s Verified Motion for Leave to Intervene at 2-3. The Schindlers have already filed a Motion for Rehearing with respect to the November 4, 2003 Order. The Schindlers hereby file this amicus curiae brief without conceding that this Court s November 4, 2003 Order was correct, and specifically preserve their right to seek reversal of that Order from this Court and the higher courts. 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 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. 1

8 come, see In Re Guardianship of Schiavo ( Schiavo IV ), 851 So.2d 182, 187 (Fla. 2 nd DCA 2003) (Terri possesses sufficient money and strength of body to live indefinitely ), and, in fact, has lived for 13 years in this condition, and yet has twice now been subjected to deliberate starvation and dehydration for the purpose of inducing death. Quite properly, this Court denied the injunction, concluding that [n]o emergency exists that would require immediate issuance of the requested relief. See Order on Petition for Declaratory Judgment and Request for Temporary Injunction. Rather, this Court requested briefing by the parties. Currently, Petitioner has filed a request for declaratory relief and a permanent injunction striking down a statute duly enacted by the legislature. As the Court certainly knows, it is no light matter to strike down any law; especially when the result of that action will lead to the death of a person. The amici Robert and Mary Schindler suggest that the more prudent course to take in this case is to stay the request for permanent injunctive relief in order to allow sufficient discovery. There are barely any facts currently before the Court. Petitioner s request, what is in essence a motion for summary judgment, is premature in that the record in this case has not been developed at all. While the situation involving Terri s predicament has certainly lasted many years, the issue in this case is less than two weeks old. No harm will come to Petitioner in litigating this case on a proper and prudent time table. The harm that will come to the legislature, and more importantly, the harm that will come to Terri as a result of such ruling, is irreversible. There should be no rush to enter such an injunction when no record has been developed, and certainly no rush when the stakes are so high. 2

9 I. PETITIONER BYPASSES ESSENTIAL REQUIREMENTS OF THE LAW. Skipping over several necessary legal requirements, Petitioner begins by asserting an alleged privacy violation and moves quickly to his claim that Respondents must prove a compelling interest to justify that violation. See Petitioner s Brief Pet. Brief at 6. The starting points, however, should be first, that before the constitutionality is even considered, a sufficient record must be developed, and second, that legislative enactments have a strong presumption of constitutionality. The burden of proof does not lie on Respondents, but rather rests on Petitioner s ability to overcome this strong presumption of constitutionality. A. The Constitutionality of a Legislative Enactment Should Not Be Decided Absent Sufficient Development of the Record. The constitutionality of a statute is frequently a mixed question of fact and law that can only be resolved after consideration of the relevant evidence. Homeowner s Corp. of River Trails v. Saba, 626 So. 2d 274 (Fla. 2d DCA 1993). This is particularly so when the attack is also against the application of the statute to the facts of the case. [T]he constitutional theories in this case involve complex... issues that cannot be resolved as pure questions of law. Id. at 275. The rule in Florida requires evidentiary hearings if there are mixed questions of law and fact, and thus, Petitioner s request to strike the Law must be denied. In this case, Petitioner asserts that the Law is unconstitutional both on its face and as applied, see Petition for Declaratory Judgment and Request for Temporary Injunction ( Petition ) at 7, thus, requiring the eliciting of necessary evidence and a denial of Petitioner s request. In Glendale Federal Savings & Loan v. State Dep t of Insurance, 485 S0.2d 1321 (Fla. 1 st DCA 1986), the First District faced an analogous situation where a statute was challenged early in the case as violating the due process, equal protection, privileges and immunities, separation of 3

10 powers, and supremacy clauses. The Court in Glendale emphasized that the wisdom of this rule [of adducing evidence and requiring the record to first be developed] is particularly evident in this case where we have been asked to rule for the first time on constitutional questions of considerable magnitude, without the benefit of any record except the various complaints and motions directed to the complaints, including appellees motion to dismiss, the granting of which sparked this appeal. Glendale, 485 So. 2d at Such is obviously the case here. Also in Glendale, the appellate court was faced with a complex constitutional question that mixed facts and law, and therefore, the court reversed the trial court s grant of a motion to dismiss and remanded in order that the parties may build a record expounding the factual premises on which they base their opposing positions. Id. at The constitutionality of this Law, both facially and as applied, is certainly a question of considerable magnitude, and by its nature, along with Petitioner s assertions, is a mix of both facts and law. The record should be sufficiently developed to permit this Court, and any appellate court, to make a fully informed decision. B. Any Enactment by the Legislature Is Presumed Constitutional. It is a fundamental proposition that all legislative enactments are presumed to be valid. Lane v. Chiles, 698 So.2d 260, 262 (Fla. 1997). A party challenging the constitutionality of an enactment has a heavy burden to show that is in invalid. Id. The Florida Supreme Court has further held that we are aware of the strong presumption in favor of the constitutionality of statutes. It is well established that all doubt will be resolved in favor of the constitutionality of the statute, and that an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. State v. Kinner, 398 So.2d 1360, 1363 (Fla. 1981) (internal citations omitted). This is, of course, the highest legal standard to meet. 4

11 The striking of a legislative enactment is not to be taken lightly; nor should the decision as to its constitutionality be made in a hurried manner. The legislature is vested with the authority to make policy and to establish mechanisms by which that policy is carried out. The legislature is vested with wide discretion to determine the public interest and the measures necessary for its achievement. The fact that the legislature may not have chosen the best possible means to eradicate the evils perceived is of no consequence to the courts provided that the means selected are not wholly unrelated to the achievement of legislative purpose. A more rigorous inquiry would amount to a determination of the wisdom of legislation, and would usurp the legislative prerogative to establish policy. Fraternal Order of Police ( F.O.P. ) v. Dep t of State, 392 So.2d 1296, 1302 (Fla. 1980). Whether one disagrees with such policy or would have implemented differing means in adopting such policy is of no consequence. To second-guess the wisdom of the legislature in adopting policy, including the policy in the case at hand (which includes the protection of life and safeguarding the accuracy of a person s wishes relating to receiving medical care, including food and water), would be to usurp the role of the legislature. When analyzing a policy decision made by the legislature, the proper inquiry concerns the constitutionality of the means chosen to effect that policy: We do not concern ourselves with the wisdom of the Legislature in choosing the means to be used, or even with whether the means chosen will in fact accomplish the intended goals; our only concern is with the constitutionality of the means chosen. Lasky v. State Farm Insurance, 296 So.2d 9, (Fla. 1974). It is certainly constitutional for the legislature in the case at hand to decide that the better policy for safeguarding a person s choice regarding the receipt of medical care is for it to be made in writing, at least where there is no consensus among the person s family members. The fact that this choice was exercised, for now, pursuant to a temporary statute authorizing the Governor to issue appropriate Executive Orders is not an unconstitutional means. 5

12 II. PUBLIC LAW DOES NOT VIOLATE TERRI S RIGHT TO PRIVACY, BUT RATHER SAFEGUARDS BOTH HER RIGHT TO PRIVACY AND HER RIGHT TO LIFE. This case is not about an infringement on one s fundamental right to privacy, but rather about the legislature s legitimate choice of the procedures to ensure that such a right is fully protected with respect to incapacitated individuals who left no written instructions regarding their medical treatment choice and whose family members are unable to reach a consensus regarding such choice. The legislature, by passing Public Law (former HB 35-E), did nothing more than put itself in the position to consider a valid policy choice to modify the existing statutory scheme effectuating the wishes of an incapacitated individual with respect to the individual s medical treatment. As the Speaker of the House stated, [t]he bill passed by the House in Special Session E on Monday night would allow the Governor to issue a moratorium to stop contested legal dehydration and starving deaths in Florida in certain instances. The moratorium would give the Legislature time to assess our current law. See Ex. 1 (statement of Speaker of the House). The legislature in this case is simply attempting to better safeguard the privacy right, along with the right to life, of individuals who, in the face of Florida law s presumption to err on the side of life, Schindler v. Schiavo ( Schiavo I ) 80 So. 2d 176, 179 (Fla. 2nd DCA 2001), do not express in writing their choice regarding medical treatment. A. Public Law Does Not Even Implicate the Scope of the Right to Privacy under the Florida Constitution, Much Less Infringe That Right. Importantly, this case is not about the scope of the right to privacy set forth in Art. I, 23 of the Florida Constitution, but about the legislature s valid choice of procedures securing the exercise of that right. Petitioner admits in his opening brief that the Florida legislature has... codified [the procedures for exercising] the right to refuse treatment in Chapter 765 of the Florida Statutes, and 6

13 that Chapter 765 does not limit the scope of the right since the procedures set forth there do not impair any existing rights which a patient may have under the State Constitution. Pet. Brief at 9 & n.5 (emphasis added). Public Law is no different. Similar to Chapter 765, the Public Law addresses only the procedural aspects of the exercise of the right to privacy. The Law authorizes a stay of execution of a surrogate s decision only where the patient left no written advance directive and only if a member of the patient s family has challenged the withholding of nutrition and hydration. See Ex. 2. The Law addresses only procedural and evidentiary requirements in cases of uncertainty, and does not limit the scope of the right to privacy, much less infringe on that right in any way. It is therefore understandable that Petitioner s only claim is that Public Law directly conflicts with [Chapter 765's] clear provisions of Florida s health care decisionmaking laws. Pet. Brief at 9. But the legislature has the power to modify the statutory provisions it enacts. Indeed, Petitioner argues that Mrs. Schiavo Has a Fundamental Privacy Right, Pet. Brief at 9-13, and then proceeds to argue that the State Has No Compelling Interest, id. at Petitioner, however, never explains how Public Law infringes on the asserted privacy right. See Pet. Brief at Petitioner s conclusory allegations, such as that the legislature and the Governor have utterly disregarded [Terri s] wishes and her rights, id. at 13, are certainly insufficient to establish an infringement on the right to privacy. And no such infringement can be established in this case. On the contrary, as discussed below, Public Law represents a valid legislative attempt to better safeguard the privacy right, as well as the right to life, of persons such as Terri. B. The Legislature Has the Power to Prescribe the Procedures by Which Fundamental Rights Are Exercised, in Addition to Possessing the Authority to Modify Existing Statutory Law. 7

14 The gist of Petitioner s argument is that the constitutional right to privacy has been infringed by regulation pertaining to the expression of such rights. See Pet. Brief at Contrary to this position, however, the Florida Supreme Court has specifically held that even in the exercise of fundamental constitutional rights, the legislature has the authority to prescribe the rules by which such rights are carried out: Given its constitutional underpinnings, the right to petition is inherent and absolute. This does not mean, however, that such a right is not subject to reasonable regulation. Quite the contrary, reasonable regulations on the right to vote and on the petition process are necessary to ensure ballot integrity and a valid election process. See, e.g., State ex rel. Citizens Proposition for Tax Relief v. Firestone, 386 So. 2d 561 (Fla. 1980) (legislature and secretary of state may impose reasonable regulations on process of petition validation to ensure expeditious and proper verification of petition signatures). Krivanek v. The Take Back Tampa Political Committee, 625 So.2d 840, 843 (Fla. 1993). The same holds true here. Even in the face of exercising a protected privacy right, the legislature clearly has the authority to establish the procedures by which that right is exercised. Petitioner also claims that the legislature has somehow lost its power to make modifications to existing statutory law. Pet. Brief at 9, et seq. But, as recognized by the Second District: It is possible that the legislature could enact a statutory framework in which objective presumptions were created to control cases in which the patient left no clear and convincing evidence of a subjective intent. Such rules arguably would be analogous to the rules governing intestate succession of property. Ch. 732, Laws of Fla. In re Guardianship of Browning, 543 So. 2d 258, 273 n.27 (Fla. 2 nd DCA 1989). 2 Since the Browning decision, the legislature has indeed enacted such a scheme, and the Public Law at issue 2 It is likewise permissible for the legislature to determine that such clear and convincing evidence be made in writing, just as in the context of wills discussed by the Court in Browning, and as discussed infra. 8

15 in this case, just like Chapter 762, is analogous to the procedural and evidentiary rules effectuating one s exercise of the fundamental right to property. For instance, Florida does not recognize oral wills. Estate of Corbin v. Sherman, 645 So. 2d 39, 42 (Fla. 1 st DCA 1994) (will devising property according to decedent s oral instructions invalid). Instead, Florida Statutes require that a will must be in writing and executed. Fla. Stat Just as requiring a written will does not infringe on a testator s fundamental property right, so requiring a written instrument as evidence of subjective intent to refuse medical treatment does not infringe on an incapacitated patient s privacy right. Both are policy decisions regarding the effectuation of the intent of the person who is exercising a fundamental right. Specifically, in In re Estate of Olson, 181 So. 2d 642, 643 (Fla. 1966), the Supreme Court of Florida found that the statutory requirement requiring the attestation of a will by at least two witnesses was a constitutional regulation within the province of the legislature to enact. Id. The Olson Court held that a written will by a competent person ( holographic will ) could be constitutionally voided [due to] the absence of two witnesses, as required by [statute]. Id. at 642. The Court rejected appellant s argument that such a statutory requirement infringed on one of the oldest rights of man, finding that the requirement is not an unwarranted restriction upon the disposition of property or its acquisition. The legislature intended it to be promotive of good public policy. Id. at 643. Just as the legislature is free to either recognize or not recognize oral or holographic wills, it is free to either recognize or not recognize oral instructions regarding medical treatment. Of course the policy decision evidenced by Public Law also ensures that the right to life of incapacitated persons is protected and they are not put to death contrary to their actual intent. 9

16 Petitioner also relies on a person s statutory right to have [her] wishes articulated by another person acting as the patient s surrogate or proxy, whether or not the patient had left written instructions. Pet. Brief at 16. In addition to the fact that this procedure of surrogate decisionmaking is not a right but a legislative (and formerly judicial) construct for attempting to divine the wishes of someone with "a current inability to articulate a desire," Pet. Brief at 11, 3 it is a policy decision of statutory rather than constitutional stature. Indeed, prior to the enactment of the legislation governing the exercise of the right to refuse medical treatment by incapacitated persons in Florida, as well as in other states across the country, the courts have not acted uniformly in determining the manner by which the right may be exercised. Some suggested procedures include recognition of a living will, the proxy judgment and instructions of a guardian, the consensus of close relatives, the certification of attending physicians that the comatose party is terminally and irreversibly ill and that the prospects of regaining cognitive brain function are extremely remote, confirmation by a hospital ethics committee of the terminal and irreversible prognosis prior to termination, or some combination of these procedures. John F. Kennedy Memorial Hosp. v. Bludworth, 432 So. 2d 611, 615 (Fla. 4th DCA 1983) (citations omitted) (emphasis added). Hence, the legislature in this case is entirely free to modify its policy or replace it with one requiring, inter alia, the consensus of close relatives, or any other policy which, in the legislature s judgment, better secures an incapacitated person s right to privacy and right to life by creating certain evidentiary presumptions so as to err on the side of defending life in cases of even slight uncertainty. 4 3 Petitioner also concedes that the [federal] Due Process Clause [does not] require[] the State to repose judgment on these matters with anyone, including family members, but the patient herself. Pet. Brief at 11 (citing Cruzan v. Director, Missouri Dep t, 497 U.S. 261, 286 (1990)) (internal quotation marks omitted). 4 As mentioned supra, this legislative policy is in accord with the judicially-created policy to err on the side of life when making the difficult decision regarding the withdrawal of life support on behalf of someone else. See In re Guardianship of Browning, 543 So. 2d 258, 273 (Fla. 10

17 III. IN ADDITION TO LEAVING THE PRIVACY RIGHT INTACT, PUBLIC LAW IS JUSTIFIED BY THE COMPELLING STATE INTEREST IN SAFEGUARDING BOTH THE RIGHT TO PRIVACY AND THE RIGHT TO LIFE. Petitioner erroneously contends that Public Law impinge[s] on a fundamental constitutional right. Pet. Brief at 18. Quite to the contrary, the Law ensures that such a right will be protected to the fullest extent possible, along with securing another fundamental right, the right to defend life. See supra. Therefore, the statute represents a valid and reasonable exercise of legislative power and need not be justified by a compelling interest. In addition to leaving any fundamental right intact, the statute is narrowly tailored (as discussed in the next section) to serve the state s compelling interests in (1) securing the right to privacy by effectuating an incapacitated person s true intent, and (2) securing the right to defend life protected by Article 1, 2. A. There is a Compelling Interest in Safeguarding the Right to Privacy. The state legislature in this case is ensuring that Terri s privacy right is fully protected. By passing Public Law , the legislature simply put itself in the position to consider the current procedural and evidentiary standards pertaining to the burden of proof in ascertaining the true subjective intent of an incapacitated person with regard to medical treatment. See Ex. 1 (statement of speaker). As the Florida Supreme Court noted in Browning, the state interests [in the preservation of life, protection of innocent third parties, prevention of suicide, etc.] are by no means a bright-line test, capable of resolving every dispute regarding the refusal of medical treatment. Rather, they are intended merely as factors to be considered while reaching the difficult decision of when a compelling state interest may override the basic constitutional right of privacy.... For example, the state may have parens patriae interests in protecting an incompetent 2nd DCA 1989) (quoting Art. I, 2, Fla. Const., which protects the right to enjoy and defend life and liberty ). 11

18 from an abusive or erroneous decision, in avoiding unwanted medical care, or in safe-guarding the accuracy of determining the person s wishes. Browning v. Herbert, 568 So. 2d 4, 14 & n.13 (Fla. 1990) (citing Cruzan v. Director, Missouri Dep t, 497 U.S. 261 (1990)) (internal quotation marks omitted) (emphasis added). Safe-guarding the accuracy of Terri s wishes is exactly what is at stake in this proceeding. In fact, the state has a duty to assure that a person s wishes regarding medical treatment are respected. Id. at 13. Obviously, if someone else s wishes, instead of Terri s, are effectuated in this case, then Terri will have been deprived of her right to privacy purported to be so vigorously protected by Petitioner. Further, the state s obligation to safeguard a person s wishes regarding medical treatment serves to protect the rights of the individual. Id. at 14. Since the right to privacy, if infringed upon, requires a compelling interest to justify the infringement, then surely the interest in protecting that right itself, by ensuring the accuracy of determining the person s wishes is a compelling interest. See Browning, 568 So. 2d at 14 & n.13; see also Krischer v. McIver, 697 So. 2d 97, 103 (Fla. 1997) ( the State has an unqualified interest in the preservation of life ); Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989) ( privacy interest must yield to the interest of the state under certain circumstances ). B. There is a Compelling Interest in Safeguarding the Right to Defend Life, in Preventing Suicide, Protecting Third Parties, and Preserving the Integrity of the Medical Profession. The Florida Supreme Court has recognized four criteria that give rise to the existence of a compelling state interest in situations similar to this case. Public Health Trust v. Wons, 541 So. 2d 96, 97 (Fla. 1989). These factors are: 1) Preservation of life, 2) protection of innocent third parties, 3) prevention of suicide, and 4) maintenance of the ethical integrity of the medical 12

19 profession. Id.; see also Browning, 568 So. 2d at 14 (same). All of the above factors are particularly relevant to this case. The state s interest in the preservation of life generally is considered the most significant state interest. Browning, 568 So. 2d at 14. Indeed, this interest is explicitly protected by Art. I 2 of the Florida Constitution as the right to... defend life. Id. There is no dispute that Terri s life is at stake in this litigation. Petitioner is seeking to overturn an Executive Order pursuant to which Terri s life is currently sustained by providing nutrition and hydration. The United States Supreme Court has also found that the State interest in preserving life is a compelling interest. See Planned Parenthood Ass n v. Ashcroft, 462 U.S. 476, 485 (1983). In this case, the U.S. Supreme Court upheld a state requirement of a second physician being present during the performance of certain abortions given the compelling interest that the State has in preserving life. Id. Thus, under federal law the state interest at state here preserving life is also compelling. Moreover, because this case involves the withholding of mere nutrition and hydration, which, at the time Terri became incapacitated, was not considered a life-prolonging procedure to which a competent adult could consent, see Fla. Stat (1990), this case involves an imputed directive by the incapacitated person to discontinue food and drink, and thus implicates the state interest in preventing suicide. Cf. In Re Grand Jury Subpoena, 150 F.3d 170, 171 (2 nd Cir. 1998) ( compelling governmental interests [include] preservation of life [and] prevention of suicide ) (holding that disallowing a prisoner to stop consuming food and drink was permissible and justified by the compelling interests in, inter alia, preservation of life and prevention of suicide). The factors of the protection of third parties and preservation of the integrity of the medical profession are also relevant to this case. First, unlike the situation in Browning, which involved no 13

20 issue... pertaining to third parties, 568 So. 2d at 14, this case does involve directly affected third parties, namely Terri s parents. Third party issues were not present in Browning because there was no disagreement among the patient s family members in that case. Id. By contrast, the instant case does involve a dispute among the patient s closest family members: Terri s parents and her husband. In addition to the fact that Terri s parents will obviously be affected by the outcome of this litigation, as at stake here is the life or death of their daughter, Terri s parents were recognized in a companion proceeding as interested parties [appearing] in the interest of the ward. Schindler v. Schiavo (In re Guardianship of Schiavo) ( Schiavo II ), 792 So. 2d 551, (Fla. 2 nd DCA 2001). Thus, the state has a compelling interest in protecting Terri s parents as innocent third parties who will be affected by the outcome of this litigation. Further, in Krischer, the Florida Supreme Court, in the context of assisted suicide at issue in that case, pointed out the possibility of presenting evidence to demonstrate the effect of [a patient s] suicide upon innocent third parties. Id. at 103 n.4. If a person s suicide may have an effect upon innocent third parties, surely a suicide by, or the termination of the life of, a parent s daughter will have an effect upon that parent as an innocent third party. Thus, the factor of the presence of Terri s parents, who, as innocent third parties, are directly affected by the outcome of this case, points to the existence of a compelling state interest. Second, the state also has a compelling interest in maintaining the integrity of the medical profession. Krischer, 697 So. 2d at 103. As the Krischer court pointed out in a related context, [w]ho would have more knowledge of the dangers of legalizing [the termination of a patient s life] than those intimately charged with maintaining the patient s well-being? Id. at 104. The instant case involves a statute that provides additional protection to those who, due to incapacity, are unable to communicate their desire regarding the withholding of food and water, who left no written 14

21 advance directive, and whose closest family members disagree as to their incapacitated relative s subjective intent. All of these factors raise legitimate policy concerns regarding the determination of such a patient s subjective intent. By revisiting the procedures of surrogate decision-making and evidentiary burdens attendant thereto, the legislature is ensuring that medical professionals are not required to terminate the lives of patients, whose wishes were erroneously or inaccurately determined. In other words, the legislature is making sure that physicians are not required to put patients to death in error, which obviously would be fundamentally incompatible with the physician s role as healer [and] would pose serious societal risks. Id. Thus, under the circumstances of this case, the state has a compelling interest in preserving the ethical integrity of the medical profession. Finally, while the state interest in preserving life by itself was found not sufficient in relation to the facts present in Browning, this interest in this case, combined with the interest to preserve the right to privacy, as well as to prevent suicide and protect third parties and the integrity of the medical profession, certainly justify the statute at issue. IV. PUBLIC LAW IS NARROWLY TAILORED TO SERVE THE COMPELLING INTEREST IN PRESERVING THE RIGHTS OF PRIVACY AND LIFE. Contrary to Petitioner s position, Public Law does not impinge[] on a fundamental constitutional right, Pet. Brief at 18, but rather ensures that such a right would be protected to the fullest extent possible, along with securing another fundamental right, the right to defend life. See supra. Therefore, the statute represents a valid and reasonable exercise of legislative power and need not be narrowly tailored. Moreover, the statute is narrowly tailored to achieve its pursued goal safeguarding the accuracy of a person s wishes in matters of life and death and ensuring that one s life is not taken 15

22 contrary to their true wishes. The statute at issue does nothing more than set a heightened evidentiary burden upon one s expression of refusal of medical treatment to protect that person against fraud or even simple mistake with regard to their wishes in matters of life and death. Contrary to Petitioner s assertion, persons who have not expressed their wishes regarding medical treatment in writing have a better (or at least equivalent) opportunity to have those wishes determined and implemented. Pet. Brief at 18. Public Law furthers the State s compelling interest... through the least intrusive means. J.A.S. v. State, 705 So. 2d 1381, 1382 (Fla. 1998) (concluding that a Florida statute prohibiting sexual activity among minors furthered the compelling interest of the State in the health and welfare of its children, through the least restrictive means, id. at 1386). Since the concern of the Law is to effectuate the true wishes of a person in the exercise of their privacy right, it is precise and narrowly tailored to limit the application of a stay authorized by the statue to the narrow class of situations where (a) the person left no written directive, (b) the person is in a persistent vegetative state, (c) the person has had nutrition and hydration withheld, and (d) there is no consensus among the person s family members as to the person s wishes. Petitioner admits that these safeguards bear on the fact that the narrow tailoring requirement is satisfied. Pet. Brief at 19. He, however, does not explain why these factors would somehow be insufficient, but instead makes what appears to be an equal protection argument, asserting some discriminatory nature of the law as to [certain] patients. Id. As the equal protection argument is addressed herein, see infra, it only bears mention here that the safeguards listed above provide exactly the kind of narrow tailoring to the pursued goal that has been upheld by the courts. Petitioner s argument based on Shaktman v. State, 553 So. 2d 148 (Fla. 1989), is unavailing. Based on Shaktman, which involved the use of telephone call tracking devices by police and required 16

23 that such devices be installed pursuant to a court order, Petitioner argues that any statute touching on the right to privacy is unconstitutional unless it necessarily provides for a preliminary judicial review relevant in criminal matters, such as a probable cause finding to install the surveillance devices in Shaktman. See Pet. Brief at 18. Contrary to this position, providing for a probable cause hearing to insure the correct application of criminal law is not the only way the state can further a valid interest. To begin with, the Shaktman case itself, relied upon by Petitioner, observed that [l]ike all of our other fundamental rights, the fundamental right of privacy is not absolute, id. at 151, and then found that the order [approving surveillance, which] did not set a time limit for the duration of the [device] was, under the circumstances, the least intrusive means to further the government interest, id. at 152. In J.A.S. v. State, the Florida Supreme Court found that a statute prohibiting sexual activity among minors under 16 was constitutional as a valid, least intrusive means of furthering the relevant state s interest. Id. at The court noted that the statute, which was also criminal in nature, was constitutional on its face and as applied. Id. at The present statute, by virtue of being civil rather than criminal, of course does not require the finding of probable cause before the four requirements enumerated earlier can be applied to a particular situation. Nor need it do so, as it is narrowly tailored to serve a compelling interest, just like the statute in J.A.S. Furthermore, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). A statute is narrowly tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy. Frisby v. Schultz, 487 U.S. 474, 485 (1988). In Frisby, a statute prohibiting the picketing narrowly 17

24 directed at [a particular] household was upheld as narrowly tailored because of its narrow scope. Id. at Similarly, the statute in this case is very narrow in scope, as evidenced by the four criteria listed above, and targets the precise evil of the uncertainty of a patient s wishes under certain narrow circumstances, such as where is there is no advance written directive, and no consensus as to the patient s wishes among her family members. Thus, the statute is narrowly tailored. Petitioner s concern that the statute would apply in a hypothetical situation involving a videotape clearly expressing a desire not to be kept alive is unavailing. First of all, a written advance directive under subsection (a) of the statute might be construed to include written by means of video. But even if it did not, this argument is as meritless as a claim that Florida's requirement of written wills is a unconstitutional violation of the right to property because it would not authorize a videotape will. The statute does nothing more than provide for a temporary stay of withdrawal of a patient s life support under certain narrow circumstances, to ensure that a close examination is undertaken of the procedures under which the life support is purported to be removed. Preserving a patient s life until all the necessary determinations have been made, including inter alia determinations as to the reliability of the evidentiary burdens and other procedures currently in place, is the least intrusive means to accomplish the state s compelling interests in protecting the right to privacy, preserving life, and preventing suicide. 18

25 V. PUBLIC LAW AND EXECUTIVE ORDER DO NOT VIOLATE, BUT RATHER RESPECT, THE SEPARATION OF POWERS. After laying out a brief history of the importance of and purpose behind the separation of powers, upon which our federal and state systems of government operate, Petitioner claims that the enactment of the Law and issuance of Order challenged in this case violate this principle. Pet. Brief at The claim is ill-founded. While maintaining a strict separation of powers is important, it has not been violated here. If Petitioner s claim that HB- 35E cannot be understood as anything other than a legislative measure authorizing the Governor to nullify the final judgment of a court in a specific case were true, see Pet. Brief at 25, then it would similarly violate the separation of powers for the Governor to stay a court-ordered execution, or to issue a pardon, or to grant clemency. See discussion, infra. Such actions, however, do not violate, but rather respect the authority of the separate branches. A. The Law and Order Here Do Not Interfere with the Court s Final Judgment. Petitioner claims that HB 35-E both arrogates to the Executive Branch the power to nullify a court judgment in a particular case and usurps the power of the Judiciary to decide cases and give effect to its judgments. Pet. Brief at 25. HB 35-E does neither. A careful examination of case law, including the cases cited by Petitioner, reveals the errancy of Petitioner s assertions. The cases of Miller v. French, 530 U.S. 327 (2000), and Plaut v. Spendthrift Farm, 514 U.S. 211 (1995), cited by Petitioner, see Pet. Brief at 26 et seq., discuss in detail what legislative actions run afoul of the doctrine of separation of powers. These cases were careful to distinguish those legislative actions that reopen rulings from those that merely alter the prospective effect of those rulings. While this distinction may appear slight, it is in essence the 19

26 difference between an unlawful encroachment and a lawful enactment. The legislative action in the case at hand is of the latter type. In Miller, the Supreme Court addressed a statute that set a new standard for providing injunctive relief in actions challenging prison conditions and provided for an automatic stay upon filing a petition to lift an injunction. The Court held that such provisions did not violate the separation of powers by reopening or suspending a judgment of a court: Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Id. at 344. The Court further clarified the holding by stating that [w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Id. at 345. That is precisely what occurred in the case at hand. The legality of not feeding or hydrating Terri remained subject to alteration due to changes in the underlying law. No retroactive change was present, but only one that was prospective. Cf. Schindler v. Schiavo (In re Guardianship of Schiavo) ( Schiavo II ), 792 So. 2d 551, 553 (Fla. 2 nd DCA 2001) ("final order entered in a guardianship adversary proceeding, requiring the guardian to discontinue life-prolonging 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"). Similarly, in Plaut, the Court dealt with a situation where the Supreme Court inferred a limitations period under an ambiguous federal securities statute. This court-imposed limitations period resulted in the dismissal of many pending cases as time-barred. In response, Congress amended the securities statute to provide a different limitations period and inserted a special motion that reinstated those cases that were already dismissed. 20

27 Importantly, the Court only struck the provisions re-instating the dismissed cases under the separation of powers doctrine, but upheld Congress change to the Court-imposed limitations period. The Court in Plaut stated that [n]othing in our holding today calls... into question Congress authority to alter the prospective effect of previously entered injunctions. Id. at 232. Hence, the distinguishing factor is whether the legislative decision applies prospectively, which is permissible, or retroactively, which is impermissible. Both the Law and Order in the case at hand did not retroactively affect the court s decision, but rather only affected the prospective feeding and hydration of those eligible, including the amici s daughter Terri. B. The Governor, along with the Legislature, Has the Inherent Authority to Commute a Sentence of Death, Which Is Legally Indistinguishable from the Current Situation. Petitioner claims that the enactment of the Law and issuance of the Order violate the separation of powers doctrine by usurping the role of the judiciary. But even Petitioner recognizes the similarities between the authority exercised by the Governor and the legislature in this case, and that same authority found in the clemency and stay of execution contexts. See Pet. Brief at Petitioner s attempt to distinguish these contexts falls short. Petitioner attempts to distinguish the clemency power of the Governor by arguing that this power is rooted in the Florida Constitution. Pet. Brief at 31. While this is certainly true, it does nothing to distinguish a case such as this where the power emanates from the legislature s authority -- which originates from the constitution. See Fla. Const. Art. III, 6 and 7. Petitioner also maintains that the Governor does not enjoy a free-ranging power to define and grant pardons according to his whims. Pet Brief at 32. But the Governor does in fact have broad discretion in this area: the governor may, by executive order filed with the secretary of state,... and, with the approval of three members of the cabinet, grant full or conditional pardons, restore 21

28 civil rights, commute punishment and remit fines and forfeitures for offenses. Fla. Const. Art IV, 8. The Governor s clemency power is certainly no different than the authority exercised in the present case. The same holds true regarding the Governor s authority to stay an execution of death. This stay, of course, is exercised even after a court has adjudicated the case and after it has entered its final ruling imposing the death sentence. The authority to do so, like that in the case at hand, emanates from the legislature. The Florida legislature has granted the Governor the authority to stay a death sentence: (1) The execution of a death sentence may be stayed only by the Governor or incident to an appeal. (2)(a). If execution of the death sentence is stayed by the Governor, and the Governor subsequently lifts or dissolves the stay, the Governor shall immediately notify the Attorney General that the stay has been lifted or dissolved. Within 10 days after such notification, the Governor must set the new date for execution of the death sentence. Fla. Stat (2003). Such broad authority has never been held to violate the separation of powers. In fact, the Florida Supreme Court has recognized the breadth of this statutory authority as it relates to the Governor s power regarding the procedures by which to review a sentence of death given to one claiming insanity. Goode v. Wainwright, 448 So.2d 999 (Fla. 1984). The Goode court found that this authority rests solely with the Governor, and not the courts, and in the context of a due process discussion relevant here, held that [t]he execution of capital punishment is an executive function and the legislature was authorized to prescribe the procedure to be followed by the governor in the event someone claims to be insane. Id. at The court then relied upon the United States Supreme Court s opinion in Solesbee v. Balkcom, 339 U.S. 9 (1950), where the Court addressed the constitutionality of a similar Georgia 22