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Judge denies motion to appoint attorney for Terri Schiavo

LAKELAND, Fla. (BP)–On the fifth anniversary of Circuit Court Judge George Greer’s Feb. 11, 2000, order to remove Terri Schiavo’s feeding tube, Greer struck another blow to Robert and Mary Schindler’s efforts to keep their daughter alive when he denied their Jan. 6 motion to set aside that 2000 order and appoint an attorney for her.

The Schindlers are the respondents in the guardianship petition filed by Terri Schiavo’s husband, Michael Schiavo, who has been trying since 2000 to have her feeding tube removed. Schiavo, the woman at the center of the nationwide life-and-death debate, has been in and out of nursing homes and hospice care since she collapsed in 1990, possibly of a potassium imbalance. With her heart stopped, her brain was deprived of oxygen and she became severely disabled.

In their Jan. 6 request to set aside, or “void,” the 2000 feeding tube removal order, the Schindlers made three arguments.

The first argument was that Greer’s 2000 order was void because Terri Schiavo had been denied state and federal procedural due process rights to have her own attorney. Drawing analogies to rights given to felons in death penalty cases, the Schindlers’ petition pointed out that they had their own attorneys and Michael Schiavo had two attorneys, but Terri Schiavo had no legal counsel in a court proceeding at which her life was at stake.

Greer disposed of this argument by ruling that there was a distinction between the legal requirements to appoint an attorney in proceedings to decide whether a guardianship should be established versus proceedings to decide whether a person such as Terri Schiavo who has been deemed incompetent should have her feeding tube removed.

Greer implied that Terri Schiavo would have been entitled to an attorney in a guardianship establishment proceeding. But he declared that she had no such right in a tube removal proceeding where her “guardian or surrogate decision-maker is authorized to exercise her constitutional right to privacy for her.”

The Schindlers’ second argument was that Florida law in effect at the time of Terri Schiavo’s alleged statements not to prolong her life did not include “provision of sustenance” within the definition of “life-prolonging procedure.” They noted that it was not until 1999 that Florida law included “persistent vegetative state” in its definition of “terminal condition.” They argued that Greer in 2000 had improperly applied laws retroactively when he ordered the tube be removed based on her husband’s testimony that in the mid-1980s Terri Schiavo had told him that she would not want to be kept alive by any life-prolonging procedures.

Greer did not accept this argument either. He ruled that the Florida court of appeals had already settled the matter of which legal standards he was to apply to the 2000 feeding tube removal hearing, that he had applied the proper legal standards, and that there was no evidence that any retroactive application of the law had taken place at that time.

Thirdly, the Schindlers argued that Greer had violated constitutional separation of powers prohibitions and encroached on the authority of the legislative and executive branches of government when he acted as Terri Schiavo’s “surrogate” or “guardian” in issuing the 2000 order.

Greer also rejected this argument. He ruled that his 2000 decision did not encroach on legislative authority because it was “partially based on the state constitutional right to privacy,” and “the procedures that were followed had been approved by the Second District Court of Appeals.” He ruled that the legal authority presented by the Schindlers for this argument did not support it.

In sum, Greer ruled that the Schindlers had failed to show any legal authority for any of their arguments, and summarily denied their request to set aside the 2000 order and appoint an attorney for their daughter.

The fight for Terri Schiavo’s life continues on other fronts.

On Feb. 4 Florida’s Second District Court of Appeals dismissed without an opinion an appeal that would have considered the religious liberty rights of Schiavo, centering on the pope’s declaration last year that removal of a feeding tube is not compatible with Roman Catholic pro-life teachings. Schiavo is Catholic.

The Second District Court’s decision, when it is finalized procedurally Feb. 22, will most likely end a current stay issued by Pinellas County Circuit Judge George Greer that is keeping Schiavo alive. The stay halts his 2000 ruling that said healthcare workers — at the request of Terri’s husband and guardian, Michael Schiavo — could discontinue feeding Terri. Once her feeding tubes are removed, she will die by starvation and dehydration — most likely within seven to 10 days.

Attorneys for the Schindler family plan to attempt to appeal the Second District Court’s decision and thus take the issue of a disabled person’s religious liberty rights to the U.S. Supreme Court.

    About the Author

  • Brent Thompson