IN THE DISTRICT COURT OF APPEAL OF FLORIDA THE SECOND DISTRICT, LAKELAND, FLORIDA CASE NO. 2D

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1 IN THE DISTRICT COURT OF APPEAL OF FLORIDA THE SECOND DISTRICT, LAKELAND, FLORIDA CASE NO. 2D IN RE GUARDIANSHIP OF THERESA MARIE SCHINDER-SCHIAVO, Incapacitated. ROBERT and MARY SCHINDLER, Appellants/Respondents, Pinellas County, Florida Probate Division LT Case No GD-003 vs. MICHAEL SCHIAVO, Guardian of the person of THERESA MARIE SCHINDLER-SCHIAVO, Appellee/Petitioner. MOTION FOR CLARIFICATION, REHEARING, AND REHEARING EN BANC OF THE PER CURIAM AFFIRMANCE AND REQUEST FOR A WRITTEN OPINION AND CERTIFICATION Appellants, Robert and Mary Schindler, pursuant to Rule 9.330(a) and Rule 9.331(d), Florida Rules of Appellate Procedure, hereby move this Court for clarification, rehearing, and rehearing en banc of the Court s 1

2 December 29, 2004, decision in this matter and request a written opinion and certification of question to Florida Supreme Court. Appellants respectfully request clarification of the Court s order summarily denying their Fed. R. Civ. P (b)(5) Motion for Relief from Judgment of the lower court s decision and its failure to rule on their November 22, 2004, request for oral argument. Appellants respectfully assert that the Court has overlooked or misapprehended critical facts and has misapprehended the law. They, therefore, request a rehearing. Appellants further respectfully assert that the case is of exceptional importance and that this Court s decision to affirm the lower court conflicts with decisions of the Second District Court of Appeal, the Florida Supreme Court, and the U.S. Supreme Court concerning the constitutional doctrine of ecclesiastical abstention and the right of an incapacitated Florida citizen to the free exercise of religion. They, therefore, request a rehearing en banc. Appellants also respectfully assert that a written opinion would provide a legitimate, good faith basis for Florida Supreme Court review and request that this Court issue a written opinion regarding its decision to affirm the lower court. 2

3 Finally, Appellants request that this court certify a question of great public importance to the Florida Supreme Court. Appellants arguments are set forth below. I. Motion for Clarification Because this Court issued only a per curiam affirmance, Appellants must assume that the Court granted summary affirmance under Fla. R. App. P Appellants request clarification of the Court s position that no preliminary basis for reversal has been demonstrated. II. Motion for Rehearing Because the Court did not hear oral arguments (Appellants November 22, 2004, Request for Oral Argument has not yet been ruled on) and did not provide a written opinion for its decision to affirm the lower court, it is difficult to ascertain the extent of the Court s misapprehending or overlooking of the facts and law. However, it seems that the Court must have misapprehended or overlooked numerous matters because of its failure to rule on the request for oral arguments and its failure to issue a written opinion in so vital a matter. Appellant s fifty-page Initial Brief raised two arguments of reversible error involving the lower court s treatment of important new circumstances, the application of which raises important state and federal constitutional issues that make it no longer equitable to enforce 3

4 the trial court s earlier order authorizing the discontinuance of food and water. The Court did not hear oral argument in this matter nor did it address the merits of any of these issues. Thus, it is apparent that the Court misapprehended or overlooked important matters of fact and law. III. Motion for Rehearing en banc Under Fla. R.App. P (d), a party may move for rehearing en banc on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court s decisions. Appellants are requesting a rehearing en banc on both grounds. A. Rehearing en banc should be granted because this case is of exceptional importance. Under the exceptional importance standard, cases involving important precedents likely to affect other cases merit rehearing en banc. See Morris v. State, 789 So.2d 1032, 1038 (Fla. 1st DCA 2001) (Browning, J., dissenting), Chancellor Media Whiteco Outdoor v. Department of Transp., 795 So.2d 991, 997 (Fla. 5th DCA 2001) (Pleus, J., dissenting). In In re Guardianship of Browning, 543 So.2d 258 (Fla. 2nd DCA 1989), this Court recognized that matters involving a patient s right to discontinue the provision of food and water are of great public importance. Although the claim is moot, we accept jurisdiction because the issue raised 4

5 is of great public importance and likely to recur. Id. It would follow that issues of great public importance also amount to issues of exceptional importance within the terms of Fed. R. App. R In addition, the error regarding the violation of the First Amendment doctrine of ecclesiastical abstention raised in Appellants Initial Brief is of exceptional importance. The United States Supreme Court, the Florida Supreme Court and this Court have all recognized the important doctrine of ecclesiastical abstention. United States v. Lee, 455 U.S. 252, 256; Malicki v. Doe, 814 So.2d 347, (Fla. 2002); Nussbaumer v. State, 882 So.2d 1067, 1077 (Fla. 2d DCA 2004). The Appellants raised the lower court s violation of this doctrine in their appeal. This Court s summary affirmance of this alleged error and the precedent established thereby is an issue of exceptional importance that should merit en banc review. Finally, the precedents set by this Court s decision will also affect this Court s future rulings on issues of the Florida statutory and the United States and Florida constitutional free exercise rights of incapacitated persons. The Rule 1.540(b)(5) Motion appealed to this court introduced new circumstances regarding deeply held religious beliefs that affect decisions of life and death that practicing Catholics believe have eternal consequences. 5

6 It, therefore, greatly implicates the important state and federal constitutional issue of the free exercise of religion. Finally, if an issue involving changed circumstances that make inequitable a court order authorizing the removal of assisted feeding in order to cause the death of a ward by starvation and dehydration does not warrant the close consideration of this Court, it would seem that this would also affect this Court s rulings on appeals from other future Rule 1.540(b)(5) appeals. This Court s summary affirmance of the lower court s decision has significant precedential impact on Rule 1.540(b)(5) motions, thereby making this an issue of exceptional importance warranting en banc review. Based on the above, this case is of exceptional importance and the Court should review this matter en banc. B. Rehearing en banc should be granted because such consideration is necessary to maintain uniformity in the court s decisions. The Appellants argued in their Initial Brief that the trial court erred when it violated constitutional principles of ecclesiastical abstention when it took sides in a religious dispute. (Appellant s Initial Brief at 26) The Florida Supreme Court has previously held that it is not within the judicial function and judicial competence of civil courts to determine which of two competing interpretations of scripture are correct. United States v. Lee, 455 U.S. 252, 256, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). 6

7 Instead, civil courts must defer to the interpretation of religious doctrine made by the highest ecclesiastical tribunal. Serbian E. Orthodox Diocese, 426 U.S. [696] at 709, 96 S.Ct Thus, the First Amendment provides churches with the power to decide for themselves, free from state interference, matters... of faith and doctrine. Kedroff [v. St. Nicholas Cathedral, 344 U.S. [94] at 116, 73 S.Ct. 143; see Serbian E. Orthodox Diocese, 426 U.S. at , 96 S.Ct Malicki v. Doe, 814 So.2d 347, (Fla. 2002). This Court has also clearly held that courts should not interpret religious doctrine. See Nussbaumer v. State, 882 So.2d 1067, 1077 (Fla. 2d DCA 2004) ( Pursuant to the ecclesiastical abstention doctrine, courts do not interpret religious doctrine or otherwise inquire into matters involving religious dogma. ). For this Court to affirm the trial court s decision, which ignored the interpretation of Catholic Church doctrine by the Catholic Church s highest ecclesiastical tribunal, and thereby fail to address the important constitutional principle of ecclesiastical abstention in accordance with established federal and state precedent, creates a clear lack of uniformity in this Court s decisions. The Appellants also argued in their Initial Brief that this case implicates the important statutory right to the free exercise of religion in Florida under Florida s Religious Freedom Restoration Act (RFRA), as well as the constitutional right to the free exercise of religion under the United 7

8 States and Florida Constitutions. By ignoring this implication, this Court fails to maintain uniformity with decisions of the United States Supreme Court which has previously held that a free exercise violation occurs when governmental action burdens a religious adherent s practice of his or her religion by pressuring him or her to commit an act forbidden by the religion, or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates. See United States v. Turnbull, 888 F.2d 636, (9 th Cir. 1989), cert. denied, 498 U.S. 825 (1990); Graham v. CIR, 822 F.2d 844, (9 th Cir. 1987) (citations omitted), aff d sub nom., Hernandez v. Commissioner, 490 U.S. 680, 699 (1988). It also conflicts with recent Florida case law that elevates the protection of the free exercise of religion above the similar federal constitutional right under the Florida Religious Freedom Restoration Act (RFRA). See, Warner v. City of Boca Raton, --- So. 2d ---, 2004 WL (Fla. Sept. 2, 2004). Based on the above, this Court should rehear this matter en banc because such consideration is necessary to maintain uniformity in the court s decisions. IV. Request for a Written Opinion In their Initial Brief, Appellants argued that the trial court erred when it violated the First Amendment s Establishment Clause prohibition on 8

9 courts deciding religious doctrine (the constitutional doctrine of ecclesiastical abstention). While the trial court may not agree with the significance and doctrinal validity of the Pope s statement about the artificial provision of food and water, the United States and Florida Constitutions require the trial court to abstain from becoming involved in a religious debate and to accept the pronouncement of the Pope as the definitive statement of the Catholic Church s doctrine regarding Mrs. Schiavo s moral obligation to continue the artificial provision of food and water. Instead, the trial court ignored the statement from the highest ecclesiastical judicature of the Catholic Church and unconstitutionally chose to take sides in the church s previous doctrinal debate in Appellee s favor. Thus, if this Court were to issue a written opinion, it would include a discussion of this First Amendment principle of ecclesiastical abstention and Appellants could seek the discretionary jurisdiction of the Florida Supreme Court to review the Court s construction of this important federal and state constitutional principle. In their Initial Brief, Appellants also argued that the trial court can no longer equitably enforce its 2000 Order without violating Mrs. Schiavo s Florida statutory right and her federal and state constitutional right to the free exercise of her religion. Mrs. Schiavo has a fundamental right to adhere 9

10 to her Catholic beliefs that cannot be restricted by either statute or court order. Thus, the trial court may not, through its February 11, 2000, Order, force Mrs. Schiavo to commit an act that is now forbidden by her religion, or prevent her from choosing to engage in conduct her Catholic faith now mandates. Thus, if this Court were to issue a written opinion, it would include a discussion of Mrs. Schiavo s state statutory and both federal and state free exercise of religion and Appellants could seek the discretionary jurisdiction of the Florida Supreme Court to review the Court s construction of a this bedrock federal and state constitutional and state statutory principle. V. Request for Certification of Question of Great Public Importance Appellants respectfully request that the Court certify the following question to the Florida Supreme Court as a question of great public importance. Is an incapacitated practicing Catholic, whose non-catholic spouse was in 2000 judicially authorized to discontinue her assisted feeding, entitled to a Fla. R. Civ. P (b)(5) evidentiary hearing to determine what that incapacitated Catholic s end-of-life wishes would be today in light of a 2004 Papal Declaration establishing new Church doctrine that 10

11 imposes upon Catholics the moral obligation to continue assisted feeding? Appellants believe this question is a question of great public importance because of the protection of religious liberty for the large numbers of elderly and incapacitated Catholics who reside in Florida and who, like Mrs. Schiavo, have not made written end-of-life declarations that take this new Catholic doctrine into consideration. Required Statements 1. Motion for rehearing en banc. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: Nussbaumer v. State, 882 So.2d 1067, 1077 (Fla. 2d DCA 2004). 2. Motion to request a written opinion. I express a belief, based upon a reasoned and professional judgment, that a written opinion will provide a legitimate basis for supreme court review because this case involves a matter that twice directly implicates the First Amendment to the United States Constitution and the Florida constitution. 11

12 Respectfully submitted, David C. Gibbs, III (Fla. Bar No ) Attorney for Appellants Gibbs Law Firm, P.A Seminole Blvd., Suite 2 Seminole, FL Telephone: (727) Facsimile: (727) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof has been mailed on this day of January 2005 to the following addressees: GEORGE FELOS DEBORAH A. BUSHNELL Felos & Felos, P.A. 204 Scotland Street 595 Main Street Dunedin, FL Dunedin, FL HAMDEN H. BASKIN, III Baskin & Fleece Feather Sound Drive, Ste. 550 Clearwater, FL David C. Gibbs III 12