- Terri's parents are held to the letter of the law; the
man who is trying to kill her is given heaping amounts of "judicial
discretion."
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- THE "RULE OF TERRI'S CASE" has struck again.
The term was coined by Pat Anderson, attorney for Terri Schiavo's parents
Bob and Mary Schindler, who complained: "If following a legal procedure
will likely result in Terri dying, it will be adhered to. But if a procedure
could make that outcome more difficult to attain, it will not be followed."
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- Anderson's complaint has ample evidentiary support. For
example, under Florida law, Terri should have a court-appointed guardian
ad litem to exclusively represent her interests. But, Judge George Greer,
of the Sixth Judicial Circuit, refused to allow one for Terri in the guardianship
case ever since her first ad litem was dismissed after recommending that
she not be dehydrated to death.
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- Similarly, "Terri's Law," the new statute that
permits Florida's governor to suspend the planned removal of a feeding
tube in certain cases, also requires the appointment of a guardian ad litem.
This was done. But after the ad litem Jay Wolfson urged that she be allowed
a swallow test, David A. Demers, chief judge of the Sixth Judicial Circuit,
refused to renew his authority. This, despite Governor Jeb Bush specifically
informing Demers that he needed further information from Wolfson to properly
carry out the governor's responsibilities under Terri's Law. So, once again,
Terri is without the protection of a guardian ad litem.
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- And now Judge Greer has repeatedly allowed Michael Schiavo
to skirt his statutory duty to file mandatory annual guardianship plans
to establish a ward's approved plan of care for the coming year. This
appears to be a direct violation of the applicable Florida Statutes, which
read in part:
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- Each guardian of the person mustfile with the court an
annual guardianship plan which updates information about the condition
of the ward. The annual plan must specify the current needs of the ward
and how those needs are proposed to be met in the coming year. (Section
744.3675; emphasis added)
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- Most important for the Schiavo case, the plan must describe
the "plan for provision of medical, mental health, and rehabilitative
services in the coming year." If a guardian fails in this duty:
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- The court shall order the guardian to file the report
within 15 days after the service of the order upon her or him or show cause
why she or he should not be compelled to do so. (Section 744.3685)
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- Moreover:
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- The court must review the initial and annual guardianship
report to determine that the report: (a) meets the needs of the ward .
. . (Section 744.369 (4); emphasis added)
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- And:
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- The approved report constitutes authority for the guardian
to act in the forthcoming year. The powers of the guardian are limited
by the terms of the report. (Section 744.368 (8); emphasis added)
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- In other words, the guardianship plan is supposed to
be reviewed by the court prospectively, not retrospectively, which makes
sense since its purpose is to ensure that the plan is appropriate to the
ward's future needs. (This is not the same thing at all as reviewing an
accounting of past expenditures.) Moreover, the approved guardianship plan
constitutes the guardian's authority to act, and the guardian's actions
are limited by the contents of the plan in the coming year. Thus, it would
appear that a Florida guardian of the person has no legal authority in
the absence of an approved plan.
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- Yet, despite these very clear statutory mandates, Judge
Greer only shrugs his shoulders at Schiavo's apparent unwillingness to
file annual plans. Indeed, he has instead six times granted Schiavo's requests
for "time extensions" for the July 2001-June 2002 plan. It is
now almost 3 years late. He also just approved a time extension permitting
Schiavo further time to file his guardianship report that should have been
in place between July 2002 and June 2003. By granting these repeated extensions
Judge Greer sends a clear message to Michael Schiavo: I am not going to
require you to comply with the statutes.
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- This makes a mockery of the rule of law. The guardianship
plan is intended to establish the plan of care and grant the guardian authority
to act in the year ahead. This means that the plans for 2001-2002 and 2002-2003,
as opposed to reporting about previous guardianship activities, are utterly
irrelevant at this point. Moreover, Greer should have long since ordered
Schiavo into court to explain his failure to file a July 2003 to June 2004
annual plan, which the law permits to be punished as contempt of court.
Not only that: Since there is apparently no current court-approved annual
guardianship plan in effect for Terri, based on the above cited statutes,
it would appear that Michael Schiavo has no legal authority over Terri's
care.
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- We've all heard of judicial discretion, but this ridiculous.
Greer has repeatedly denied Terri important protections to which she is
entitled under Florida statutes--for almost three years--and no court
will do anything about it. No wonder the Florida legislature passed Terri's
Law.
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- I asked Pat Anderson why, in her opinion, hard and fast
rules that govern other guardianships don't apply to Terri. She chuckled
bitterly, "It's the Rule of Terri's Case. Both the guardian and the
judge treat Terri as though she were already dead and in no need of these
statutory protections."
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- Harsh words? I think not. Schiavo's most recent requests
for time extensions were for the purpose of waiting to see whether "the
mandate of the Second District Court of Appeal may be complied with."
The "mandate" in question is Terri's dehydration. Thus, to put
it bluntly, Judge Greer permitted Schiavo to again avoid complying with
his already long overdue statutory obligations because, in essence, Terri
is as good as dead: So, why go through the time and bother of complying
with the law?
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- WHILE WE ARE ON THE SUBJECT of Michael Schiavo treating
Terri as if she were already dead: I recently completed reading his November
19, 1993 deposition. The examination took place after the Schindlers attempted
to remove Schiavo as Terri's guardian because he refused to allow the administration
of antibiotics to treat a serious infection. After admitting to having
been romantically involved with other women during this period, he was
asked what he did with Terri's jewelry. He answered:
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- "Um, I think I took her engagement ring and her--what
do you call it--diamond wedding band and made a ring for myself."
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- Sweet.
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- Wesley J. Smith is a senior fellow at the Discovery Institute,
and an attorney for the International Task Force on Euthanasia and Assisted
Suicide. He is also a special consultant to the Center for Bioethics and
Culture.
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- © Copyright 2004, News Corporation, Weekly Standard,
All Rights Reserved.
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