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4-17-04
Did FL Judge trash constitution in Terri
Schiavo case?
John William Kurowski
On May 6th, 2004, Judge W. Douglas Baird
ruled Terri’s Law is unconstitutional.
Baird wrote in his decision that Terri’s Law:
“is unconstitutional on its face because it is an unconstitutional delegation
of legislative power to the Governor and because it unjustifiably authorizes the
Governor to summarily deprive
Florida citizens of their constitutional right to privacy. In both instances,
these are pure question of law that require no evidentiary support under any
conceivable circumstance.”
The key word in Baird’s above assertion is “unjustifiably”. Fact is, every
member of Florida’s Legislature upon taking their office, took an oath of office
and agreed to a prime directive. That prime directive in part requires every
member of the Legislature, as well as Florida’s Governor, to protect and
preserve the constitutional guarantees of the inhabitants of Florida which are
enumerated in Florida’s Constitution, one such right being, the protection of
life!
The Florida Constitution states in part:
SECTION 2. Basic rights.--All natural persons, female and male alike, are
equal before the law and have inalienable rights, among which are the right to
enjoy and defend life and liberty….No person shall be deprived of any
right because of race, religion, national origin, or physical disability.
Let us assume for a moment, with regard to Judge Baird’s decision, that the
judicial branch of government in the exercise of its power authorized and/or
acquiesced so as to allow the deprivation of Terri’s rights which are guaranteed
by Florida’s Constitution, and, that the deprivation of the rights involved may
very well have resulted in the court issuing an order to end Terri’s life. Would
the Legislature and Governor not then be justified in intervening for the sole
purpose of guaranteeing rights which the Constitution already provides for?
Truth is, not only would such an act be justified, but those in the Legislature
who are aware of a person’s rights being denied, and having taken an oath to
preserve and protect rights enumerated in Florida’s Constitution, would become
willing accomplices in the deprivation of such rights if they stood idle and did
not take action to correct the tyranny of the Court. see:
Sec. 242 - Deprivation of rights under color of law
For Baird to assert there is no “conceivable circumstance” under which Terri’s
Law may be justified, one must first assume and/or pretend that the judicial
branch of government is incapable of using its force in such a manner as to
allow the deprivation of an individual’s constitutional guarantees…an assertion
which no reasonable person would ever make because there are countless recorded
Supreme Court rulings documenting where lower courts have presided over cases in
which citizens’ rights have been denied and abridged. Therefore, Baird’s premise
as he postulates above is patently false on its face because there is
a “conceivable circumstance” under which Terri’s Law can be justified, and the
conceivable circumstance is if Terri’s constitutional guarantees have been
abridged resulting in a court order to end her life.
Baird also wrote in his decision that "by substituting the personal judgment
of the governor for that of the patient, the act deprives every individual who
is subject to its terms of his or her constitutionally guaranteed right to the
privacy of his or her own medical decisions."
First of all, Baird’s above statement is
again patently false upon its face as Governor Bush has never suggested he wants
to or would substitute his judgment for that of the patient. As a matter of
fact, Florida’s Honorable Governor Bush is on record as calling for a jury to
sort the matter out, just as Florida’s Constitution provides for when the state
is called upon to end a person’s life. See:
Jury trial sought to decide what Schiavo wanted
Baird’s assertion, and it is an assertion, that Terri’s Law violates Terri’s
right to privacy, suggests to the world that he has communicated with Terri and
knows what Terri wants and that Terri wants to die, and the Governor is
interfering with Terri‘s wish. But the incontrovertible truth is, neither Baird,
Greer, Michael, Felos, or even Terri’s parents know what Terri wants, because
there is no clear and convincing evidence from her own lips or hand indicating
what she wants. There are only the speculative beliefs of those who claim to
know what she wants, and some have alleged Terri wants to die and have turned to
the court to seek the power of the state to end Terri’s life based upon their
beliefs.
So, Baird’s decision to strike Terri’s Law down as being unconstitutional on the
grounds that Governor Bush has substituted his personal judgment for Terri’s, is
found to be based upon Baird’s unsubstantiated assertion that he, as he has
accused the Governor of, knows what Terri wants, and he, unlike Florida’s
Governor, would use the force of government to impose upon Terri what he alleges
are Terri’s wishes, even to the extent of ending her life, rather than err on
the side of life as the Supreme Court of the United States has suggested is the
proper course of action in such cases. The U.S. Supreme Court has stated:
“An erroneous decision not to terminate results in a maintenance of the
status quo; the possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the patient's intent,
changes in the law, or simply the unexpected death of the patient despite the
administration of life-sustaining treatment, at least create the potential that
a wrong decision will eventually be corrected or its impact mitigated. An
erroneous decision to withdraw life-sustaining treatment, however, is not
susceptible of correction. In Santosky, one of the factors which led the Court
to require proof by clear and convincing evidence in a proceeding to terminate
parental rights was that a decision in such a case was final and irrevocable.
Santosky, supra, at 759. The same must surely be said of the decision to
discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all
agree will result in her death.” See:
CRUZAN CASE
So, as it turns out, Governor Bush and Florida’s Legislature have done nothing
more than err on the side of life as suggested is the proper course of action by
the U.S. Supreme Court. Baird, on the other hand, is willing to end Terri’s life
without clear and convincing evidence from her own lips or hand that this is
what she wants.
It is also interesting to note that Baird, in his decision, dwells upon the
“separation-of powers” doctrine to claim Terri’s Law is unconstitutional,
because it is a “…delegation of legislative power to the governor.” But
Baird conveniently forgets the separation of powers doctrine also applies to the
constitutionally assigned duties of judge and jury, and that Judge Greer
improperly acted as judge and jury in a case in which a person’s
constitutionally protected right to life was at issue, and interfered with
Terri’s right to the protection of a jury in evaluating
the flimsy evidence asserted to be Terri’s wish that she wants to
die.
The reality is, Baird is quite willing to ignore the separation of powers
doctrine when it suites his personal whims and fancies and when it comes to the
assigned duties of judge and jury in evaluating evidence alleging what Terri’s
wishes are. And just what are the assigned duties of judge and jury as stated by
the U.S. Supreme Court which Baird and Greer ignore?
“The trial was thus conducted upon the theory that it was the duty of the
court to expound the law, and that of the jury to apply the law as thus declared
to the facts as ascertained by them. In this separation of the functions of
court and jury is found the chief value, as well as safety, of the jury
system. Those functions cannot be confounded or disregarded without endangering
the stability of public justice, as well as the security of private and personal
rights.”
See:
Sparf v. United States, 156 U.S. 51, 106, (1895)
Also see Justice Byron White in
in Taylor v. Louisiana, 419 US 522 , 530 (1975)
"The purpose of a jury is to guard against the exercise of arbitrary power --
to make available the commonsense judgment of the community as a hedge against
the over-zealous or mistaken prosecutor and in preference to the professional or
perhaps overconditioned or biased response of a judge."
Terri’s right to the protection of a jury was waived without her knowing and
willing consent. Florida’s Constitution states in part:
SECTION 9. Due process.--No person shall be deprived of life,
liberty or property without due process of law, or be twice put in jeopardy for
the same offense, or be compelled in any criminal matter to be a witness against
oneself.
And what due process is guaranteed to Terri in a case in which the state is
called upon to end her life?
SECTION 22. Trial by jury.--The right of trial by jury shall be secure to
all and remain inviolate.
There is no provision in Florida’s Constitution to allow Terri’s right to the
protection of a jury to be waived without her knowing and willing consent. But
the Judicial Branch of Florida’s government [Baird, Greer, etc.] along with an
interested party, Michael, have abridged Terri‘s right to the protection of a
jury whose constitutionally mandated duty is to evaluate evidence concerning
what Terri allegedly wants.
Unfortunately, in Terri’s case, there is no written instruction as to what Terri
would now want. Some have alleged she wants to die and have sought to use
government force to end her life. But, under our system of government, the force
of government is controlled and regulated by a constitution, and that
constitution guarantees the protection of a jury to help sort the matter out.
And why should this not be the case? If the state is called upon to end a
person’s life, and such a request is granted, is it not true that the state has
acted in the name of the people? And if this is true, that the state acts in the
name of the people in issuing an order to end a person‘s life, should the people
not be included in the judicial process as provided by our constitution and to
act as a “hedge against the over conditioned or biased responses of a judge“?
In summary:
Baird’s decision to strike Terri’s Law down as being unconstitutional assumes
that Terri’s constitutional guarantees have not been violated by the Court; that
she has no right to the protection of jury in a case in which the state is
called upon to end her life; that an interested party, who may not be acting in
Terri’s best interest, may waive her right to the protection of a jury without
her knowing and willing consent; that a governor and state legislature may not
intervene if the judicial branch of government becomes tyrannical in its duties
and deprives an individual of their constitutional guarantees; and lastly, Baird
would have the world believe that Terri’s Law is unconstitutional because he has
consulted with Terri and she has verified to Baird that she wants to die and
Terri’s Law violates her personal privacy and desire to die and Governor Bush is
interfering with Terri’s wishes.
Governor Bush’s attorney, Ken Connor, has stated on "On the Record with Greta":
“We’ll go to the Florida Supreme Court, and if the Governor isn’t afforded an
opportunity to try this case before a JURY, we’ll try to go to the U.S. Supreme
Court……mister Schiavo and mister Felos are terrified of trying this case before
a jury….”
And why are they terrified of trying this case before a jury? Why would anyone
object to simply granting Terri the protection of a jury as our constitution
commands and allowing a jury to evaluate
the evidence that Terri wants to die? If the evidence is there, let
the people do their part and evaluate such evidence, which is asking for nothing
more than what Florida's Constitution provides for, and is what Governor Bush is
attempting to guarantee.
Sincerely,
John William Kurowski, Founder
American Constitutional Research Service
[Permission is hereby given to reprint this article if credit to its author and
the ACRS appears in such reprint. No copyright is claimed for quotes within the
article which are public domain materials.]
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