Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

that could dramatically improve Mrs. Schiavo' s the record: condition and allow her to have cognitive function Despite our decision that the appropriate standard to the level of speech. In our last opinion we stated of review is abuse of discretion, this court has that the Schindlers had " presented no medical closely examined all of the evidence in this record. evidence suggesting that any new treatment could We have repeatedly examined the videotapes, not restore to Mrs. Schiavo a level of function within merely watching short segments but carefully the cerebral cortex that would allow her to observing the tapes in their entirety. We have understand her perceptions of sight and * 327 sound examined the brain scans with the eyes of educated or to communicate or respond cognitively to those laypersons and considered the explanations perceptions." Schiavo IL 792 So. 2d at 560. provided by the doctors in the transcripts. We have Although we have expressed some lay skepticism concluded that, if we were called upon to review the about the affidavits, the Schindlers now have new guardianship court' s decision de novo, we would presented some evidence, in the form of the still affirm it. affidavit of Dr. [ Fred] Webber, of such a potential new treatment. d. at 186. Finally, the Second District concluded its fourth opinionin the Schiavo case with the Id. at 645. following observation: The judges on this panel are called upon to make a collective, objective decision The Second District permitted the Schindlers to concerning a question of law. Each of us, however, present evidence to establish by a preponderance of has our own family, our own loved ones, our own the evidence that the judgment was no longer children. From our review of the videotapes of 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 8/ 3/ 2006 https:// web2. westlaw .comlprint/printstream. aspx?utid=% 257b87F 1 E849- A561- 497D- 9703- 0CFDA...  Page 8 of 1 7 885 So. 2d 321 Page 8 885 So.2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) encroach the judicial and to Mrs. Schiavo, despite the irrefutable evidence that upon power her cerebral cortex has sustained the most severe of retroactively abolish Theresa' s vested right to FN2 irreparable injuries, we understand why a parent privacy. who had raised nurtured a child from and conception would hold out hope that some level of we find the separation of cognitive function remained. If Mrs. Schiavo were FN2. Because our own daughter, we could not but hold to such a powers issue to be dispositive in this case, faith. we do not reach the other constitutional But in the end, this case is not about the aspirations issues addressed by the circuit court. that loving parents have for their children. It is about Theresa Schiavo' s right to make her own ANAL YSIS decision, independent of her parents and independent of her It may be unfortunate husband.... We begin our discussion by emphasizing that our that when families cannot agree, the best forum we task in this case is to review the constitutionality of can offer for this private, personal decision is a chapter 2003- 418, not to reexamine the public courtroom and the best decision-* 328 maker guardianship court' s orders directing the removal of we can provide is a judge with no prior knowledge Theresa' s nutrition and hydration tube, or to review of the ward, but the law currently provides no better the Second District' s numerous decisions in the solution that adequately protects the interests of case. Although we recognize that the guardianship promoting the value of life. We have previously parties continue to dispute the findings made in the affirmed the guardianship court' s decision in this prior proceedings, these proceedings are relevant to regard, and we now affirm the denial of a motion our decision only to the extent that they occurred for relief from that judgment. and resulted in a final judgment directing the FN3 withdrawal of life-prolonging procedures. d. at 186- 87. We denied review, see In re Guardianship of Schiavo, 855 So. 2d 621 ( Fla.2003) and Theresa' s nutrition and hydration tube was FN3. The parties stipulated that the circuit removed on October 15, 2003. court was authorized to take judicial notice of three orders of the guardianship court. On October 21, 2003, the Legislature enacted The circuit court relied only on the chapter 2003- 418, the Governor signed the Act into existence of these orders in finding chapter law, and the Governor issued executive order No. 2003- 418 unconstitutional as applied. 03- 201 to stay the continued withholding of nutrition and hydration from Theresa. The The language of chapter 2003- 418 is clear. It nutrition and hydration tube was reinserted pursuant states in full: to the Governor' s executive order. Section 1. ( 1) The Governor shall have the authority to issue a one- time stay to prevent the withholding On the same day, Michael Schiavo brought the of nutrition and hydration from a patient if, as of action for declaratory judgment in the circuit court. October 15, 2003: Relying on undisputed facts and legal argument, a) That patient has no written advance directive; the circuit court entered a final summary judgment b) The court has found that patient to be in a on May 6, 2004, in favor of Michael Schiavo, persistent vegetative state; finding the Act unconstitutional both on its face and c) That patient has had nutrition and hydration as applied to Theresa. Specifically, the circuit withheld; and court found that chapter was2003-418 d) A member of that patient' s family has unconstitutional on its face as an unlawful challenged the withholding of nutrition and delegation of legislative authority and as a violation hydration. of the right to privacy, and unconstitutional as 2) The Governor' s authority to issue the stay applied because it allowed the Governor to expires 15 days after the effective date of this act, Q 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. A561- 497D- 9703- 0CFDA... 8/ 3/ 2006 https:// web2. westlaw .comlprint/printstream. aspx?utid=% 257b87F 1 E849-  Page 9 of 17 885 So.2d 321 Page 9 885 So. 2d 321, 29 Fla. L.Wee1dy S515 Cite as: 885 So. 2d 321) and the expiration of the authority does not