3) Affidavit of Gordon W. Watts, requesting and justifying Emergency Relief
4) “Page 2 of 5: APPENDIX” of case number SC03-2420, In re Gordon Wayne Watts, which shows a list of items supporting the claims of abuse alleged herein.
APPENDIX B - Selected Federal Court Due Process denials
1) Transcript from October 10, 2003 Arguments before the Hon. Richard A. Lazzara, U.S. Circuit Judge, in the matter of Schindler et ux., as next friends, on behalf of Theresa M. Schiavo, seeking injunctive relief.
APPENDIX C - Selected State Court Due Process denials
1) Denial of Habeas by Circuit Court (19 Dec 2003) improperly applying Durocher v. Singletary, 623 So.2d 282, 485 (Fla. 1995)
2) Circuit Court’s improper or illegal treatment of a Reply Brief as a “Motion for Rehearing” (31 Dec 2003)
3) Denial of Due Process by refusal of Circuit Court to consider a timely filed motion for certification and clarification, order rendered on 03 Feb 2004.
4) Illegal denial with prejudice of a similar petition in State Appeals Court, a violation of State and Federal constitutional guarantees of free access to petitions for habeas relief. (Entered by Fla. 2nd DCA on April 21, 2004)
5) and 6) (Two Pages) Denial of Habeas Relief in the State’s Highest court (pending on motion of rehearing) due to technical reasons, and obvious denial of constitutional Due Process.
i. (B)
TABLE OF CITATIONS
Page Numbers
Florida Constitution
Art.I§2,Fla.Const. 19
Art.I§9,Fla.Const., “Due process” 28;29
Art.I§13,Fla.Const. 4
Art.I§17,Fla.Const., “Excessive punishments--” 10
Art.V,§4(b)(1),Fla.Const. x
Art.V,§4(b)(3),Fla.Const. 6;36;47; Passim
Florida Statutes
§§27.251;27.255,Fla.Stats. 49
§§86.011;86.071;86.101;86.111,Fla.Stats. (Jurisdiction of trial court, Jury trials) 19
§112.19,Fla.Stats. 45;47;49;50
Chapter 400, Fla.Stats. 2
§400.607(2)(b),Fla.Stats. 49
§400.609(4),Fla.Stats. 18;49
§400.6095(2),Fla.Stats. 21;49
§400.6095(4),Fla.Stats. 49
§415.104,Fla.Stats. 48
§435.03(2),Fla.Stats. (Prohibitions regarding employment as guardian) 23
§458.326(4),Fla.Stats., “Intractable pain; authorized treatment.--” 8
§733.504(3),Fla.Stats. 22
§§733.504(3),(5),(9),Fla.Stats., “Removal of personal representative; causes for removal.--” 21,22
ii.
TABLE OF CITATIONS
Page Numbers
Florida Statutes (continued)
§744.102(9),Fla.Stats., Definition, “Guardian ad litem” 27;28;29
§744.102(10)(b),Fla.Stats., Definition: “To ‘meet essential requirements for health or safety’” 9;16
§744.1095,Fla.Stats. (Rights of alleged incapacitated person or the adjudicated ward) 13
§744.309(1)(a),Fla.Stats. (State resident, 18+ and sui juris may be guardian) 27
§744.309(1)(b),Fla.Stats. (Prohibitions) “No judge shall act as guardian...” 28
§744.309(3),Fla.Stats. “DISQUALIFIED PERSONS” 22
§744.3215,Fla.Stats., “Rights of persons determined incapacitated” Passim
§744.3215(1)(a),Fla.Stats. (Ann. rev. of guardianship report, plan) 13; 38; 40
§744.3215(1)(d),Fla.Stats. (Humane treatment; protection against abuse, etc.) 13
§744.3215(1)(e),Fla.Stats. (Rights to qualified guardian) 13
§744.3215(1)(h),Fla.Stats. (Retained right for prudent financial management)13;21
§744.3215(1)(i),Fla.Stats. (Nondelegatable rights of rehab) 3;13;16;17;38;40;43;46
§744.3215(1)(l),Fla.Stats. (Nondelegatable rights to counsel) 13;28;38;40
§744.3215(1)(m),Fla.Stats. (Rights to visitors, communications) 13
§744.3215(3)(b),Fla.Stats. (Rights that may be removed: Sue and defend) 27
§744.3215(3)(f),Fla.Stats. (Rights that may be removed: consent to med. trtmnt) 13
§744.3215(4),Fla.Stats. (Rights not delegatable without court approval) 28
§744.331,Fla.Stats. 18
§744.344(5),Fla.Stats. 17
§744.361(3),Fla.Stats. 22
§744.367,Fla.Stats. 22
§ 744.3675,Fla.Stats. 18
§744.369(8),Fla.Stats. 18
§744.3725,Fla.Stats 28
§744.391,Fla.Stats 27;29
iii.
TABLE OF CITATIONS
Page Numbers
Florida Statutes (continued)
§744.446, Fla.Stats., “Conflicts of interest; prohibited activities;
court approval; breach of fiduciary duty.--” 15;23
§744.474(5),Fla.Stats., “Failure to comply with any order of the court.” 22
§744.474(7),Fla.Stats., “wasting, embezzlement, or other mismanagement of the ward's property.” 23
§744.474(16),Fla.Stats., “The improper management of the ward's assets” 22
§744.474(18),Fla.Stats., other “Reasons for removal of a guardian” 22
§765.101(10),Fla.Stats., Definition: “Life-prolonging procedure” 3;8;47
§765.101(12)(a),Fla.Stats., Definition: “Persistent vegetative state” 38;40
Chapter 765,Fla.Stats. 44; Passim
§765.104(2),Fla.Stats. 22
§765.309,Fla.Stats. 3;47;50
§§765.309(1),(2),Fla.Stats. 8
§782.051,Fla.Stats., “Attempted felony murder” 8;37;43
§782.07, Fla.Stats., “Manslaughter; aggravated manslaughter of an elderly person or disabled adult...” 8;37
§782.08,Fla.Stats., “Assisting self-murder.--” 8;47
Chapter 798,Fla.Stats. (§§798.01;798.02,Fla.Stats.) 22-23
Chapter 825,Fla.Stats. (Felony abuse of elderly, disabled) 4;17;44;45 Passim
§825.102,Fla.Stats. 47
§825.102(3),Fla.Stats. 9;40;46
§825.103(2)(a), Fla.Stats. (First Degree felony exploitation, funds
In excess of $100,000.oo) 23;40
§828.12,Fla.Stats., “Cruelty to animals--” 10
§828.13(2)(a),Fla.Stats. 10
§828.13(2)(c),Fla.Stats. 10
iv.
TABLE OF CITATIONS
Page Numbers
Florida Statutes (continued)
§876.02,Fla.Stats. 42;43
§932.50,Fla.Stats 42; 43
§943.10(1),Fla.Stats. 45;47;49;50
§951.03,Fla.Stats. 10
Public Law 03-418 (colloquially known as “Terri's Law”). 29;41
Federal Constitution and Federal Statutes
42C.F.R.§418.22(b) 18;25
42C.F.R.§418.84 16
42C.F.R.§418.92 16
42U.S.C.§1983 37;42-43
Amendment I, U.S.Const. 3-4
Amendment V, U.S.Const. 18;19;28;29
Amendment VII, U.S.Const. 19, 21
Amendment XIV, U.S.Const. 18; 19; 28; 29
Art. VI, Paragraph 2, U.S.Const. (Supremacy Clause) 4
OASAM Code of Federal Regulations, §35.130(e)(2) 9
Florida Rules of Civil/Appellate Procedure
RULE 9.030(b)(1)(A),Fla.R.App.P. (Appeal Jurisdiction of DCA’s) x
RULE 9.100(a), Fla.R.App.P. (Original Jurisdiction of DCA’s) x
RULE 1.430(a),Fla.R.Civ.P., “Right Preserved. The right of trial by jury...” 19
RULE 9.030(b)(3),Fla.R.App.P. x;4;6;35;36;47; Passim
RULE 9.040(c),Fla.R.App.P. (Improper Remedy Rule) 46
RULE 9.120(d),Fla.R.App.P. (Jurisdictional Briefs) x
RULE 9.210(a),Fla.R.App.P.(Compliance with font size, type) 59
RULE 9.300(c),Fla.R.App.P., “Emergency Relief” x;xi
RULE 9.400,Fla.R.App.P. (Attorneys’ Fees) 3
v.
TABLE OF CITATIONS
Page Numbers
Additional Authorities
“A”
Articles 5,6,7,9,13,25, respectively: UNIVERSAL DECLARATION
OF HUMAN RIGHTS, UN General Assembly Resolution 217A (III)
of 10 December 1948 12
"Attitudes of Elderly Patients and their Families Toward
Physician-Assisted Suicide," Dr. Harold Koenig et al., 156
Archives of Internal Medicine 2240 (Oct. 28, 1996) 51
“C”
Catholic Culture website (Regarding fate of Marjorie Nighbert) 26
collateral estpoppel 21;41;42
Catholic World News — News Brief — 07/18/2000
“Study Says Some Comatose Patients May Be Aware” 51
“E”
“Euthanasia and physician-assisted suicide: attitudes and
experiences of oncology patients, oncologists, and the
public.” Emanuel EJ, Fairclough DL, Daniels ER, Clarridge BR.
Lancet. 1996 Jun 29;347(9018):1805-10. 51
“J”
James Madison (quote) 20
John Adams (quote) 20
“M”
Michael Schiavo (quote) From: http://www.540wfla.com/1013.html 15
“P”
“PETITION TO REMOVE GUARDIAN AND TO APPOINT
SUCCESSOR GUARDIAN,” File No. 90-2908GD-003, (Fla.
6th Cir. Ct., pending, Probate) (Brief) 18
Pope John Paul II (quote) 12
pro bono 31
pro hac vice 32
vi.
TABLE OF CITATIONS
Page Numbers
“R”
res judicata 21;41;42
“S”
stare decis 4
“T”
“The 'Lectric Law Library's Legal Lexicon On * HABEAS CORPUS *”
From: http://www.LectLaw.com/def/h001.htm 6,7;32
The Operation and Jurisdiction of the Florida Supreme
Court, Gerald Kogan and Robert Craig Waters, 18 Nova L. Rev.
1151 (Fla. 1994) 7;32;33;35;39;44;58; Passim
Thomas Jefferson (quote) 20
Florida State Holdings
Allison v. Baker, 11 So.2d 578, 578 (Fla. 1943) 25
Bundy v. Rudd, 366 So.2d 440 (Fla. 1978) 44
Burton v. Burton, 448 So.2d 1229 (Fla. 2d DCA 1984) 22;23
Carnley v. Cochran, 123 So.2d 249 (Fla. 1963), [reversed on
other grounds, 369 U.S. 506 (1962)] 58
Cleveland v. State 417 So.2d 653 (Fla. 1982) 44
Crane v. Hayes, 253 So.2d 435 (Fla. 1971) 7;33
Curtis v. Albritton, 132 So. 677 (Fla. 1931) 46
Dickenson v. Stone, 251 So.2d 268 (Fla. 1971) 50
Doroucher v. Singletary, 623 So.2d 482, 485 (Fla. 1993) 33;34
Florida League of Cities v. Smith, 607 So.2d 397, 399 (Fla. 1992) 50
Galilee v. Wainwright, 362 So.2d 936 (Fla. 1978) 50
Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992) 48
In re Guardianship of Browning, 543 So.2d 258 at 273 (Fla. 2d DCA 1989) 14
In re Guardianship of Browning, STATE of Florida v. Doris F.
Herbert, etc., No. 74,174 (Fla. Sept. 13, 1990) 14
vii.
TABLE OF CITATIONS
Page Numbers
Martinez v. Martinez, 545 So.2d 1338 at 1339 (Fla. 1989) 35;36
McRae v. Robbins, 9 So.2d 284, 151 Fla. 109 (Fla. 1942) (Declaration
of Rights, §§ 1,12) 39
Morgareidge v. Howey, 78 So. 14 (Fla. 1914) 30
Order of Probate Court, Fla. 6th Judicial Circuit, File No. 90-2908GD-003,
17 September 2003, done and ordered in chambers at 3:27pm, George
W. Greer, Circuit Judge, Southern Second Reporter reference
presently unavailable 15
Florida State Holdings (continued)
Petition of FLORIDA STATE BAR ASSOCIATION, et al., 40 So.2d 902,
at 903, note 8, “Attorney and client”) (Fla. 1949) 4;38;45; Passim
Pino v. District of Court of Appeal, Third District, 604 So.2d 1232 (Fla. 1992) 48
Porter v. Porter, 53 So. 546 (Fla. 1910) 7;8;33;34
Rice v. Wainwright, 154 So.2d 693 (Fla. 1963)]. 58
Robertson v. Wilson, 51 So. 849, 59 Fla. 400, 138 Am.St.Rep. 128. (Fla. 1910) 39
Rodriguez v. Levin, 524 So.2d 1107 (Fla. 3d DCA 1988). 28
Schindler v. Schiavo, 800 So.2d 640, at 646 (Fla. 2d DCA 2001) 15;24
Schindler v. Schiavo, slip No.: 90-002908-GD-03, “CHIEF JUDGE’S
ORDER DENYING RE-APPOINTMENT OF GUARDIAN AD
LITEM” ; Fla. 6th Judicial Circuit, 08 January 2004, David A. Demers,
Chief Judge, 6th Judicial Circuit; pending litigation and Southern Second
Reporter reference presently unavailable 29
Schindler et ux., v. Schiavo, No. 2D03-5200 (Fla. 2d DCA Feb. 13, 2004) 30
Sieniarecki v. State, 724 So.2d 626 (Fla. 4th DCA 1998), and affirmed
by This Court in slip number 94,800, L.T.: 4D98-0997 43
Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997) 48
Southerland v. Sandlin, 44 Fla. 332, 32 So. 786 (Fla. 1902) x;48
Sparkman v. McClure, 498 So.2d 892 (Fla. 1986) 46
viii.
TABLE OF CITATIONS
Page Numbers
Florida State Holdings (continued)
State v. Bloom, 497 So.2d 2 (Fla. 1986) 44
State v. Donner, 500 So.2d 532 (Fla. 1987) 44
State ex rel. Bank of Am. v. Rowe, 118 So. 5 (Fla. 1928). 44
State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 461, 152 So. 207,
209 (Fla. 1933) 7;32;33; Passim
State ex rel. Peacock v. Latham, 125 Fla. 69, 169 So. 597 (Fla. 1936), 48
State ex rel. Pooser v. Wester, 170 So. 736, 737 (Fla. 1936)). 35
Turner v. Singletary, 623 So.2d 537, 538 (Fla.1st DCA 1993) 48
Wilburn v. Wilburn, 143 So.2d 518 (Fla. 2d DCA 1962). 22;23
Waldrup v. Dugger, 562 So.2d 687 (Fla. 1990) 46
Wuesthoff Memorial Hospital, Inc. v. Florida Elections
Commission, 795 So.2d 179 (Fla. 1st DCA 2001; Case No.: 1D01-2917) 48
Non-Florida State Holdings
In re Conroy, 98 N.J. 321, 367-70, 486 A.2d 1209, 1233-34 (1985) 11
In re Gardner, 534 A.2d 947, 954 (Me. 1987) 11
In re Guardianship of Grant, 109 Wash.2d 545,563, 747 P.2d 445,454 (1987) 11
In re Hier,18 Mass.App. Ct. 200, 207, 464 N.E.2d 959,964, review
denied, 392 Mass.1102, 465 N.E.2d 261 (1984) 11
Federal Holdings
Edgar v. Mite Corp., 457 U.S. 624, 631 (1982) 4;5
Gideon v. Wainwright, 372 U.S. 335 (1963) 13
Gray ex rel. Gray v. Romeo, 697 F. Supp. 580, 588
n. 4 338 (Dist. of Rhode Island 1988) 11
Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) 4
SPARF v. U.S., 156 U.S. 51 at 106 (1895) 19
Stone v. City and County of San Francisco, 968 F.2d 850,
862 (9th Cir. 1992), cert. denied, 113 S.Ct. 1050 (1993) 5
Whitmore v. Arkansas, 495 U.S. 149, at 163 ; 110 S.Ct. 1717 ;
109 L. Ed. 2d 135 (1990) 7;33;34
ix.
JURISDICTION
This cause comes before The Court as an original writ -not as a petition for certiorari from a lower court decision.
Although there are pending petitions in the Florida Supreme Court seeking, among other things, a writ of habeas corpus, Petitioner will not bring his pending habeas petitions (SC03-2420) up for cert. review because to do so might waive the right for this lower court to continue review, and might “put all ward’s eggs in one basket.” Therefore, Petitioner brings this original action, and lets the state petitions, which are not being acted upon, to remain under “review” while this court hears the prayers of petitioner.
This brief is being submitted with formal request to be put on “fast track.” This is justified by information of record on the standard of medical care currently being given Theresa Schiavo, as supported by the short appendix in this cause. Reports from many sources, too graphic to put within the “four corners” of the petition, include the following quote: “Terri Schiavo Being Abused, Neglected: Bedsore, Unwashed, Tooth Lost!” and reports of unexplained bouts of vomiting.
While Petitioner is not allowed to personally verify these claims, due to a refusal to grant visitation rights, sources are cited, with permission, to avoid even the appearance of libel or improper defamation of character (causes to strike a brief), and would appear to constitute “probable cause” to grant “emergency relief” in the instant cause.
For this case, most, if not all, matters of fact are not in dispute, so this briefing shall focus on matters of law, with limited citations when findings of fact are cited and in need of verification. Redress was sought in State Courts to address the violations at issue, however, after no relief was granted, Petitioner, Gordon Watts, now -for the sake of time - takes the briefs filed in the lower courts and modifies it for this court.
The petitions in the lower courts cited ample federal authority -in anticipation that this brief would need to be filed in This Court. That day has come: Petitioner now files a modified and improved version of these briefs in the in instant redress.
Every effort was be made to comport with, as closely as reasonably possible, the 40 page maximum, imposed by the U.S. Supreme Court Rules, however attempts
x.
JURISDICTION (continued)
to change the font size from Times New Roman size 14 to font size 11 - to reduce the page number - would require major revisions to the page numbering and, due to the time restraints in the instant case, are not favored.
Due to troubles converting from Microsoft Works to Word 97, the margins may not be exactly as 1 inch, as required, and Petitioner prays for proper understanding here. The number of pages in this petition is larger than usual due to the font size used in the lower court pleadings, not due to any effort to circumvent page requirements. (Additionally, since there is not reasonable time to reformat and remove the double spacing and correct the page numbering, PETITIONER prays court will understand how petition herein goes a little over page limit.) Therefore, petitioner prays court for understanding in this filing, which is being done without the assistance of legal help -or, for that matter, and proper legal training.
Petitioner prays court that redress would be given equally to the “small people,” not represented by rich and powerful attorneys -most especially because while this “Schiavo matter” has been litigated, no proper analysis had, before today, been given the justifications to issue an extraordinary habeas corpus and her sister writs.
The jurisdiction of this most honorable court is hereby invoked under 28. U.S.C. §2241 (habeas corpus) and 28 U.S.C. §1651(a) (extraordinary writs).
For the purposes of this petition, the following reference words and symbols will be used throughout this brief:
“Petitioner” and “Appellant” will refer to Petitioner, Gordon Wayne Watts.
“§” and “Fla.Stats.” will refer to section and citation of Florida Statutes.
“RULE” and “Fla.R.App.P.” will refer to Florida Rules of Appellate Procedure.
“RULE” and “Fla.R.Civ.P.” will refer to Florida Rules of Civil Procedure.
“C.F.R.” shall refer to “Code of Federal Regulations.”
“U.S.C.” shall refer to “United States Code.”
“Art...§” and “Fla.Const.” will refer to “Article...section” and “Florida Constitution.”
“Art...§” and “U.S.Const.” will refer to “Article...§” and “United States Constitution.”
“Terri Schiavo” and “Theresa Schiavo” shall refer to Theresa Marie Schindler-Schiavo of Pinellas County, Florida.
“This Court” shall refer to The U.S. Supreme Court
xi.
STATEMENT OF THE CASE AND FACTS
Roughly thirteen years ago, Terri Schiavo fell into a coma, thought to be induced by temporary deprivation of oxygen to her brain, possibly the result of heart attack, thought by some to be brought on by a lack of potassium. Schiavo’s husband, Michael Schiavo, sued his wife’s doctors, alleging negligence, with stated promises of funding her care and rehabilitation. A jury awarded roughly $300,000 for losses suffered by the husband and roughly $750,000 to be used exclusively for approved medical treatment and rehabilitative therapy. Monies from the lawsuit, however, have only minimally been directed towards Terri Schiavo’s care, being primarily appropriated for lawyer fees for husband Michael, in apparent violation of the trial court ruling and its jury award.
Schiavo has recently made claims that his wife would not want to be supported by life-extending measures, and has concomitantly attempted to have her feeding tubes removed. She had no living will, thus the matter went before the Courts, which have consistently found, as finding of fact, that Terri would not want to be supported by feeding tubes, which are routinely used to support a very great number of people who cannot, for a number of reasons, eat in a standard manner. After court orders to remove only her feeding tubes, husband Michael Schiavo, her guardian, also ordered the removal and withholding of “regular” food and water, and denial of other necessary medical services, including but not limited to pap smears and basic antibiotics, which appeared to Petitioner and others contemporary to constitute felony crimes under Florida Law. After noting these acts, which appeared illegal, many of which occurred around mid October 2003, Petitioner initially attempted to report this to the local law enforcement agency, the City of Pinellas Police Department. After they refused to take a report or investigate, claiming “the matter was in court,” Petitioner, attempted to report
Page 1
these abuses to Adult Protective Services' Abuse line (1-800-96-ABUSE), of the Florida Department of Children and Families, another agency with jurisdiction, eventually speaking to at least two representatives (“Risa,” operator number 5253, “Chuck,” operator number 5238, and Chuck's supervisor) circa 10-30-2003 to 11-02-2003. Further attempts to convince the local police authorities to comply with their obligation to uphold the law and investigate allegations of abuse and violations of law met with the claims that their attorneys had advised them to not discuss the matter (phone conversations with Chief, Dorene Thomas, City of Pinellas Park Police Department). After they refused to investigate or act, Petitioner attempted to contact attorneys for the police department to act, in an “out of court settlement attempt” phone call. After several requests by their secretaries for Petitioner to call back and speak with Attorney Chris Hammond, Petitioner finally was able to speak with Attorney Hammond and was told by this attorney that the matter was in court and refused to advise its client, local police, to enforce/investigate the state felony abuse laws that Michael Schiavo was alleged to have violated. Hammond also accused Petitioner of making harassing phone calls and practicing law without a license, promised to notify the Florida Bar of this allegation, and advised him to not call back. Ed Foreman, the managing partner and Hammond's supervisor eventually sent Petitioner Watts a certified postal letter to this effect. (See appendix) Petitioner spoke to investigator “Yerbe” (spelling uncertain) of the State Attorney’s Office of Pinellas County, but he refused to investigate concerns of abuse, claiming that since Petitioner was suing his office, no investigation could occur. On 09 April 2004, Petitioner spoke with Lealand McCharen of AHCA, seeking enforcement of chapter 400 of state law and was unsuccessful in this attempt. While there is a whole host of ongoing litigation, no relief has yet been obtained, as this is the first petition to This Court by anybody for either Habeas or Quo Warranto relief. In addition, this is the Page 2
first attempt by anybody to bring the local police department before This Court, seeking a Writ of Mandamus to compel enforcement of the State's laws regarding this matter.
After attempts to obtain an out of court settlement from any respondent (simple compliance with state/federal laws, not monetary settlement or preemptive attorneys' fees under RULE 9.400,Fla.R.App.P.) failed, Petitioner now comes to This Court for relief.
SUMMARY OF ARGUMENT: REASONS FOR GRANTING THE PETITION
In compliance with 28 U.S.C. §§2241, 2241 (Cf.: Rules of US Supreme Ct., Rule 20 -1. And 20 -4.(a)), petitioner states that (1) this action will be in aid of The Court’s appellate jurisdiction (to right wrongs that affect a wide spectrum), (2) exceptional circumstances warrant the exercise of this court’s jurisdiction (the unchecked violations of various federal provisions), (3) adequate relief cannot be obtained in any other form (see appendices), and (4) There exist “reasons for not making application to the district court of the district in which the applicant is held,” namely that the U.S. Circuit Judge admitted (see transcripts) or at least did not dispute that he himself was in violation of state felony laws, thus implying that any application to his court would deny due process. (See e.g., APPENDIX B of this filing, page 84, where the Federal Judge admits or at least does not deny that he is complicit in a felony violation of state law and could be visited by “the State Attorney of Pinellas County … knocking on my door and say, Judge Lazzara, you are under arrest[].”)
Page 3(A) - so placed to correct page numbering
SUMMARY OF ARGUMENT: REASONS FOR GRANTING THE PETITION
(continued)
The facts find, on the face, that at least four distinct illegal acts have taken place:
(1) an attempted mercy killing, AKA euthanasia, directly illegal (§765.309, Fla.Stats., as defined by §765.101(10), Fla.Stats.);
(2) The daily and consistent deprivation of rehabilitation (§744.3215(1)(i), Fla.Stats.) of Terri Schiavo, is also illegal, as a deprivation of Federal Equal Protection;
(3) Various state felonies and other violations regarding abuse of elderly and disabled were committed by guardian -and sanctioned by the local police; and,
(4) Other state and federal issues (too numerous as to no mention here), detailed in argument; one needing to be mentioned here: The police department’s attorneys refused to advise their client to enforce -or even investigate the alleged felonies outlined in the case at bar -and possibly actively discouraged them. This makes the attorneys complicit. [1] These illegal acts invite the extraordinary writs and “all writs necessary to the
__________________________________
[1] This is a violation of the First Amendment of the U.S. Constitution, which generally protects the rights of Redress, including to local police authorities, an extension of the Executive Branch of Government. The attorneys for the city are complicit, whether they actively advised against -or merely passively allowed -such (continued to next page)
Page 3(B) - so placed to correct page numbering
complete exercise of its jurisdiction,” (9.030 (b)(3), Fla.R.App.P.), including, of course, the “Great Writ” of habeas corpus, which shall be grantable “freely and without cost…[and]…returnable without delay…” (Art. I, §13, Fla. Const.).
Even assuming, arguendo, some portion of state law is in violation to the constitutional principles outlined in the State and Federal constitutions, nonetheless, This Court is not bound by any act of Congress that is “repugnant to the constitution.” Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) In spite of the fact that This Court has not, in the past, enforced the felony abuse laws described herein or laws mandating rehabilitative therapy, This Court must not let stare decis dictate that This Court “stands by” prior inaction.
As well, the Supremacy Clause mandates that any state statutes or holdings which conflict must, of necessity, yield: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” Art. VI, Paragraph 2, U.S.Const.
It is well settled law that “a state statute is void to the extent that it actually
__________________________________
[1] (continued from previous page) behavior. The attorneys cannot plead ignorance, and place full blame on their client, who abridged or eliminated these clear and obvious redress rights, because the Schiavo case has received considerable publicity locally, and even Nationwide/Worldwide. Thus, the Attorneys, as Officers of the Court (per Petition of FLORIDA STATE BAR ASSOCIATION, et al., 40 So.2d 902, at 903, note 8, “Attorney and client”)(Fla. 1949)) are complicit in felony violation of chapter 825 of State Law -and suppression of Federal Constitutional First Amendment rights. This is without excuse. See pp. 38 and 45 of the instant brief for a more thorough discussion of the Attorney’s responsibilities under Petition of FLORIDA STATE BAR ASSOCIATION. Page 4
conflicts with a valid federal statute” and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Accord: Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992), cert. denied, 113 S.Ct. 1050 (1993), which held that “otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme.”
The lower tribunal, violated numerous RULES, as outlined in the record on appeal, including, but not limited to ruling prematurely: “The tenth day fell on...it was timely that day...However, This Court ruled on this motion in error prematurely...before time had expired to file a response by petitioner, and that portion of the ruling which states dismissal should temporarily be a nullity and void ab initio, until such time is allowed for petitioner to respond...” (MOTION TO REVERSE THE ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS...) However, the instant petition shall not dwell on errors by the trial court, instead focusing on what legal grounds authorize and grant relief.
At least four previously untried remedies (writs) exist to solve this logjam.
While Theresa Schiavo's treatment is at issue, there is an even more important useable and valuable gift in jeopardy: “The Protection of Law,” AKA “The Rule of Law.” These laws are not merely contracts; they are promises to the Florida State citizens. The more important concept is that the guardians of justice have made promises regarding standards, whether they are to allow euthanasia (in Oregon and the Netherlands) -or to prohibit euthanasia and elderly/disabled abuse (felonies) in Florida (and 48 of the other 49 States).
Let us keep our word. Page 5
Argument I
Habeas Corpus lies to compel justification for the deprivation of potentially any liberty
A. Jurisdiction: TITLE 28 U.S.C. §2241 (habeas corpus) and 28 U.S.C. §1651(a) (extraordinary writs). Cf. state laws infra
“District courts of appeal may issue...all writs necessary...or any [individual] judge therof may issue writs of habeas corpus returnable before the court or any judge therof, or before any circuit judge within the territorial jurisdiction of the court.” RULE 9.030(b)(3),Fla.R.App.P. Accord: Art.V,§4(b)(3),Fla.Const.
Habeas is, then, the most powerful of all writs. This Court has jurisdiction.
As state in the PREFACE AND INTRODUCTION of this cause, This Court has appeal jurisdiction, but also may exercise original jurisdiction. If one jurisdiction is obtained, then the other is moot, except to the extent that standards may be more accurately defined regarding procuring jurisdiction in unresolved case law.
In the instant case, a life is in jeopardy, as indicated by the items in the appendix, which document an illegal detention, concurrent with illegal deprivation of needed medical services, a second or third degree felony, depending how much harm is done, therefore, Petitioner urges This Court to not be swayed by any “issues” with regards to allegations concerning standing or the like -until the matter is thoroughly reviewed. If this charge is allowed to die in custody, there being no statute of limitations on murder, this case will tie up the Florida judiciary for years; and, further, great disgrace will come upon Florida Courts, who will be forever described as having “dirty hands” or “blood on their hands” for not acting.
The Writ of Habeas Corpus, sometimes called the “Great Writ,” may be filed
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“by a person who objects to his own or another’s detention or imprisonment,” and is issued by the court when there are legal or factual bases to demand justification for the detention or imprisonment in question. (From: http://www.LectLaw.com/def/h001.htm -- emphasis added).
This petition is in objection to another’s treatment. “Potentially, any deprivation of personally liberty can be tested by habeas corpus, and for that reason it is often called the Great Writ.” (The Operation and Jurisdiction of the Florida Supreme Court, Gerald Kogan and Robert Craig Waters, 18 Nova L. Rev. 1151, at 608. (Fla. 1994); Accord: State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 461, 152 So. 207, 209 (Fla. 1933) Emphasis added).
The courts, in Deeb, find that a friendly person in the interest of the person illegally detained may file a petition for writ of habeas corpus; and, that to be a “next friend,” one “must provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf.” Whitmore v. Arkansas, 495 U.S. 149, at 163 ; 110 S.Ct. 1717 ; 109 L. Ed. 2d 135 (1990); and that “The alleged harm must be actual or imminent, not 'conjectural' or 'hypothetical.'” Whitmore, 495 U.S. at 155, 110 S.Ct. at 1723.
“Even detention imposed on someone by a private individual potentially can be tested by habeas corpus. The most common use is where one parent alleges that the other parent has taken custody of a child wrongfully.” (Jurisdiction, Kogan and Waters, 18 Nova L. Rev. 1151, at 624. (Fla. 1994), citing Crane v. Hayes, 253 So.2d 435 (Fla. 1971); Porter v. Porter, 53 So. 546 (Fla. 1910))
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Habeas corpus is supposed to be a “speedy method of affording judicial inquiry into the cause of any alleged unlawful custody.” Porter v. Porter, 53 So. 546, 547 (Fla. 1910).
B. Identity of respondents and relief sought
This Court is aware of the dispute over whether a feeding tube should be used as a “life-prolonging” measure for Theresa Marie Schindler-Schiavo (hereinafter “Terri Schiavo” or “Theresa Schiavo”). However, This Court is also aware that there was withholding of food and water - a life-threatening act, which was neither lawful [2], nor ordered by any court, but ordered by Michael Schiavo, estranged husband and guardian of Terri Schiavo.
Additionally, Class II Felonies were apparently committed by estranged
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[2] The 2003 Florida Statutes explicitly prohibit any lethal or fatal act that would constitute assisted suicide: §782.08,Fla.Stats. “Assisting self-murder.--Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.” (Accord: §§782.051 “Attempted felony murder”; 782.07, Fla.Stats. “Manslaughter; aggravated manslaughter of an elderly person or disabled adult...”) “Mercy killing or euthanasia not authorized; suicide distinguished.-- (1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act [be it lethal injection or lethal starvation, dehydration] or omission [of food and water] to end life other than to permit the natural process of dying. (2) The withholding or withdrawal of life-prolonging procedures [defined below] from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide.” §765.309 (1) and (2), Fla.Stats. (Emphasis supplied; comments in brackets)
“Definitions--As used in this chapter: … ‘Life-prolonging procedure’ means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration…” §765.101(10), Fla.Stats. (Emphasis added)
Accord: §458.326(4), Fla.Stats. “Intractable pain; authorized treatment.-- Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, and no treatment authorized by this section may be used for such purpose.” (Emphasis supplied) Page 8
husband and guardian, Michael Schiavo, this past October 2003: His refusal to supply both food and needed medical services, including, but not limited to antibiotics, constitutes a breach of state and federal law, the former a felony. [3]
Controlling precedent: (1.) It is illegal to kill a prisoner with starvation. (Generally the courts have not permitted such: Accord: Art.I,§17,Fla.Const.: “Excessive punishments--Excessive fines, cruel and unusual punishment...Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature...”
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[3] §825.102(3),Fla.Stats. “(a) “Neglect of an elderly person or disabled adult” means: 1. A caregiver's failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly person's or disabled adult's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult; or
(b) A person who willfully or by culpable negligence neglects an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084.” (Emphasis added)
§744.102(10)(b), Fla.Stats., discussed infra, defines: “To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.” (Emphasis supplied) While this definition does not technically apply to chapter 825 supra, it nonetheless comports to and is in accord with said chapter.
OASAM Code of Federal Regulations, Part 35: NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES provides that necessary and appropriate rehabilitation services and physical motor skill therapy may not be denied a substantially disabled patient in the United States of America, §35.130(e)(2) states, “Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.” (Emphasis in bold face) Page 9
Accord: §951.03,Fla.Stats. “Boards of county commissioners, when working county prisoners on the public works of the counties shall provide, or cause to be provided, substantial food, clothes, shoes, medical attention, etc., for said prisoners as are required for state prisoners in the state.” (Emphasis added) We must not apply a double standard to Theresa Schiavo. This is not legally consistent.
(2.) It is illegal to kill a prisoner by denial of proper medical treatment. (§951.03,Fla.Stats. “Boards of county commissioners, when working county prisoners on the public works of the counties shall provide, or cause to be provided, substantial food, clothes, shoes, medical attention, etc., for said prisoners as are required for state prisoners in the state.” (Emphasis added)
(3.) It is illegal to kill a pet dog with starvation: §828.13(2)(a),Fla.Stats. “Whoever: Impounds or confines any animal in any place and fails to supply the animal during such confinement with a sufficient quantity of good and wholesome food and water, is guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or by a fine of not more than $5,000, or by both imprisonment and a fine.” Emphasis added (Accord: §828.12,Fla.Stats., Cruelty to animals--) (Double standards are used and in effect here.)
(4.) It is illegal to kill a pet dog by a denial of necessary medical treatment: §828.13(2)(c),Fla.Stats. “Whoever: Abandons to die any animal that is maimed, sick, infirm, or diseased, is guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or by a fine of not more than $5,000, or by both imprisonment and a fine.” Emphasis added (Accord: §828.12,Fla.Stats., Cruelty to animals--) (Double standard used here: Theresa thought less important than dog.) (5.) DOUBLE STANDARD: It is illegal to deny medical services or food to, say, an injured law enforcement officer, or any “important” person in “free” society (for, say, three days and 1 hour), and this would result in a capias
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being issued for the arrest of any such perpetrator: So much more should denial of needed services to Theresa, who was denied for twice as long (six days and 2 hours without food, water or medical treatment), patently illegal per felony abuse laws cited herein. Thus, in courts of fairness, even without the strength of the felony abuse laws (for elderly and disabled), and even without laws on assisted suicide, manslaughter, or euthanasia, one would understand treatment to Theresa Schiavo here to be illegal. (Logic: Humans are more important than animals. * Law-abiding citizens more protected than criminals.) HOWEVER, with these laws, Theresa Schiavo is “super-protected” by the promises of the laws. Let us keep our promises. Since, when Theresa collapsed, “life prolonging procedures” did not include feeding tubes, according to Fla. State Law, at the time, it is certain she could not have even consented to what would then be defined as starvation. Other states, while not legally binding on current Florida law, nonetheless constitute controlling precedent, and have similar laws as were present when Theresa collapsed. [4] (Emphasis added in some cases for clarity)
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[4] In re Hier, 18 Mass.App. Ct. 200, 207, 464 N.E.2d 959, 964, review denied, 392 Mass.1102, 465 N.E.2d 261 (1984), rejecting distinction between nutrition and treatment.
In re Gardner, 534 A.2d 947, 954 (Me. 1987), holding nutrition and hydration indistinguishable from other life-sustaining procedures.
In re Conroy, 98 N.J. 321, 367-70, 486 A.2d 1209, 1233-34 (1985), in which the court held that “[W]e reject the distinction . . . between actively hastening death by terminating treatment and passively allowing a person to die of a disease...[and] also reject any distinction between withholding and withdrawing life-sustaining treatment.”
In re Guardianship of Grant, 109 Wash.2d 545, 563, 747 P.2d 445, 454 (1987), which held the right to withhold life-sustaining procedures extends to all artificial procedures which serve only to prolong the life of a terminally ill patient.
Gray ex rel. Gray v. Romeo, 697 F. Supp. 580, 588 n. 4 338 (Dist. of Rhode Island 1988), which held that there existed no analytical difference between withholding and withdrawing medical treatment. Page 11
(Actually, Theresa’s wishes cannot be known with certainty: See page 51 of this brief for two studies finding it impossible to determine patients’ wishes; see also anecdotal cases: “Cases Similar to Schiavo,” following these studies, pp. 52-57.)
Recent comments by the Pope support these states' holdings: “VATICAN CITY -- Pope John Paul says the removal of feeding tubes from people in vegetative states is immoral...The pope says providing food and water should be considered natural, ordinary care -- not artificial medical intervention.” (Published reports: http://www.wesh.com/news/2937625/detail.html ; WESH, CBS, TV-Channel 2, Orlando, Florida; UPDATED: 3:21 p.m. EST March 20, 2004)
In addition, legally binding International Law on this member state (United States) separately prohibits a number of acts that have been and are continually being committed on an ongoing and daily basis: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” ; “Everyone has the right to recognition everywhere as a person before the law” ; “All are equal before the law and are entitled without any discrimination to equal protection...” ; “No one shall be subjected to arbitrary arrest, detention or exile” ; “Everyone has the right to freedom of movement and residence...” ; “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control...” (Articles 5, 6, 7, 9, 13, and 25, respectively: UNIVERSAL DECLARATION OF HUMAN RIGHTS, (Adopted by UN General Assembly Resolution 217A (III) of 10 December 1948), from: http://fletcher.tufts.edu/multi/texts/UNGARES217A.txt)
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Theresa Schiavo has suffered various other deprivations of liberty, which are also testable by habeas, namely many retained rights, which are distinguishable from “rights that may be removed.” [5] Of note, it is clear that Theresa is due at least as much counsel as a criminal, (see, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963)). Of course, these cases are legally distinguishable: In Gideon, the individual provided counsel was thought to have committed a crime, and a life was not at stake. How much more is the “right to counsel” preserved when a life is at stake, and the “indigent” is not a criminal, but a citizen (whose life is threatened)?
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[5] §744.3215,Fla.Stats. Rights of persons determined incapacitated.--
(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:
(f) To consent to medical and mental health treatment.
(1) A person who has been determined to be incapacitated retains the right:
(a) To have an annual review of the guardianship report and plan.
(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(e) To have a qualified guardian.
(h) To receive prudent financial management for his or her property...
(i) To receive necessary services and rehabilitation.
(l) To counsel.
(m) To receive visitors and communicate with others. (Emphasis added)
Accord: §744.1095,Fla.Stats. (emphases added infra)
Hearings--At any hearing under this chapter, the alleged incapacitated person or the adjudicated ward has the right to:
(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity;
(2) Testify;
(3) Present evidence; [which, in the instant case, would necessitate a GAL and counsel in court, retained rights under §744.3215,Fla.Stats., and quoted supra]
(4) Call witnesses;
(5) Confront and cross-examine all witnesses; and
(6) Have the hearing open or closed as she or he may choose.
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In the absence of a will, controlling precedent in case law -and as supported by the Florida and U.S. Constitutions' rights to life, and “equal protection” against discriminations, including those based on disabilities -as well as Due Process -generally frowns upon the granting of the deceased person’s estate based only on the word of a person. How much more, then, the granting of a life-or-death decision should be not taken. This Court has generally found that when there is doubt, the “right to live” is greater than the alleged “right to die.” (“We confirm today that a court's default position must favor life.” In re Guardianship of Browning, 543 So.2d 258 at 273 (Fla. 2d DCA 1989)) However, much more than a simple question of “what would Theresa Schiavo want” is being asked. Questions being asked are “why are felony crimes proceeding unchecked?” and “how could anyone sanction the commission of a crime, simply because 'Theresa Schiavo might want it to be so'?” (One cannot condone a crime, simply because “Terri might want it.”) Even assuming, arguendo, Theresa would desire these acts, most, but not all, are expressly forbidden, prohibited by many laws, as outlined in the instant brief.
“I am concerned that, if there is no judicial involvement [by This Court], these decisions could be made by surrogates [such as Michael Schiavo] who would benefit financially from an early termination of the ward's life” (In re Guardianship of Browning, STATE of Florida v. Doris F. Herbert, etc., No. 74,174 (Fla. Sept. 13, 1990)), OVERTON, Justice, concurring in part and dissenting in part.) (Emphasis supplied; comments in brackets)
In addition to (1) Financial conflict, supra, there is also (2) Romantic conflict, as guardian has admitted an adulterous relationship, in violation of chapter 798, Fla.Stats. Further, there is (3) possible criminal conflict, as new bone-scan records had revealed evidence of spousal abuse, and, if true, would constitute motive to silence the mouth of the witness, a possible battered wife, Theresa
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Schiavo, so that she would not be able to testify about alleged spousal abuse, that is, by regaining ability to speak. These acts violate §744.446,Fla.Stats. “Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.--”
In other words, while it is questionable based on the “finding of fact” that Terri Schiavo would want to have a feeding tube withdrawn (in light of the fact that, when she collapsed, “life prolonging procedures” did not include feeding tubes, according to Fla. State Law, at the time) - in light of the absence of a living will - it would be explicitly illegal to remove “regular” food and water, in light of this finding of law. The fact that she may not be able to eat or drink does not make moot the law, as written. Further, due to interference and prevention of requisite testing by the estranged husband, (See, e.g., Schindler v. Schiavo, 800 So.2d 640, at 646 (Fla. 2d DCA 2001) in which This Court held “...the opinions of the remaining doctors may have been limited by their inability to examine Ms. Schiavo or obtain necessary diagnostic information...”), it is not known if Terri Schiavo can indeed swallow food or liquids --or, be given rehabilitation to regain ability which may have been lost in the “swallowing reflex,” [6] generally the last reflex to diminish in deteriorating health. Therefore, habeas lies to compel justification and test the instant illegal deprivation of the several liberties in the case at bar. TEST
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[6] (Ironically, court orders prohibited swallowing testing, accepted the claim that Terri Schiavo might choke to death, merely one possibly, yet denied both feeding tube (marginally legal) and oral food (explicitly illegal), which would constitute certain lethal treatment. Thus, the claims that attempts were being made to save Terri's life from choking are hollow: “Petition for Immediate Therapy” denied by Order of Probate Court, Fla. 6th Judicial Circuit, File No. 90-2908GD-003, 17 September 2003, done and ordered in chambers at 3:27pm, George W. Greer, Circuit Judge, Southern Second Reporter reference presently unavailable; “Michael Schiavo has resisted attempts to see if his wife can swallow food and water, citing medical experts who say she might choke or get pneumonia from inhaling the nourishment.” From: WFLA-AM 540, Radio, Orlando, FL: http://www.540wfla.com/1013.html. ) Page 15
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Federal Authorities support the state laws mandating necessary medical treatment and rehabilitative therapy, both physical therapy as well as mental/verbal speech therapy. This is not an option:
42C.F.R.§418.84 (FEDERAL LAW) Condition of participation--Medical social services. “Medical social services [including, of course, antibiotics, pap smears, physical rehabilitation and speech therapy] must be provided by a qualified social worker, under the direction of a physician.”
42C.F.R.§418.92 (FEDERAL LAW) Condition of participation--Physical therapy, occupational therapy, and speech-language pathology.
(a) Physical therapy services, occupational therapy services, and speech-language pathology services must be available, and when provided, offered in a manner consistent with accepted standards of practice.
(b)(1) If the hospice engages in laboratory testing outside of the context of assisting an individual in self-administering a test with an appliance that has been cleared for that purpose by the FDA, such testing must be in compliance with all applicable requirements of part 493 of this chapter.
(2) If the hospice chooses to refer specimens for laboratory testing to another laboratory, the referral laboratory must be certified in the appropriate specialties and subspecialties of services in accordance with the applicable requirements of part 493 of this chapter.
Chapter 744, Fla.Stats., deals with retained rights, and as such, §744.102(10)(b),Fla.Stats., defines: “To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness [such as death, the extreme case] is more likely than not to occur.” [Dehydration would likely result in first injury, then death.] (This chapter does not apply to chapter 744.3215(1)(i),Fla.Stats., regarding rehabilitation therapy, unless a chapter is defined as all of 744, in which case it would. In either case, State Law and Federal Law are in complete accord and agreement.]
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There are two “general” objections to the mandate that Terri should, of certainty and without delay, be afforded protection under Chapter 825 of Florida Law and the congruent Federal authorities:
MYTH 1) “She can't eat regular food anyway,” so MYTH 2) “denial of regular food is moot.”
First FACT 2) It is not moot, because State and Federal law make no exceptions for “PVS” or “people who cannot eat.” Thus, she is protected, and the standards must not fall by bad precedent of denial of protection, else no law or construction will be enforceable. She is due both food and needed medical services such as antibiotics and proper healing rehabilitory environment.
Then FACT 1) “Can’t eat anyway?” We do not know if Terri can eat or drink, because thorough testing of her ability to swallow food has illegally been denied for well over a decade. (Additionally, besides denial of testing, the denial of rehabilitation, a violation of retained rights under §744.3215(1)(i),Fla.Stats. is contributory, as well as possible spousal abuse, as indicated by previously suppressed bone scan evidence. The police, obligated to investigate all these allegations, both those of this past October, and also those a decade ago, have absconded, and now become targets of mandamus, infra. Accord: §744.344(5),Fla.Stats. “A plenary guardian shall exercise all delegable rights and powers of the incapacitated person.”)
After having established many violations, it is proper to “test” each one of them by a Writ of Habeas Corpus with an individual question. (It gets confusing, due to the great number of violations, which are similar, in some cases, but not the same, and this necessitates an ordering.)
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Thus, there appears no reason why This Court should not be able to seek a justification for each alleged deprivation of liberty, whether it involves a “physical” detention or something else.
THE TEST:
GUARDIANSHIP DEPENDENT ON APPROVED REPORT:
“In light of §744.369(8), Fla.Stats., and the fact (by pending litigation: PETITION TO REMOVE GUARDIAN AND TO APPOINT SUCCESSOR GUARDIAN, File No. 90-2908GD-003, Fla. 6th Circuit, Probate) that This Court is aware that no approved report (or any report for that matter) has been filed recently, by what authority does guardian, Michael Schiavo, retain guardianship at all?”
(§744.369(8),Fla.Stats., “The approved report constitutes the [sole] authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report. The annual report may not grant additional authority to the guardian without a hearing, as provided for in §744.331, to determine that the ward is incapacitated to act in that matter.”) (Comment in brackets.) (“15. The guardian is required by law to prepare and present an annual plan. Fla. Stat. § 744.3675. Throughout his tenure as guardian, Schiavo has filed the annual plans late or not at all, and has provided incomplete and inaccurate information.” Ibid., Brief filed by Atty. Pat F. Anderson, 15 November 2002)
DETENTION AT HOSPICE:
“By what right is Terri detained at the Hospice, when she does not qualify under State guidelines?” (§400.609(4),Fla.Stats.)(Accord: 42C.F.R.§418.22(b), infra)
DEPRIVATION OF RIGHTS UNDER THE 5TH AND 14TH AMENDMENTS:
“By what right was ward, Theresa Schiavo, deprived of the “any [RETAINED]
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right[s] [on a daily basis and enumerated herein and infra] because of race, religion, national origin, or physical disability” and to “enjoy and defend life and liberty?” (Contravening and violating Art.I,§2,Fla.Const.; Accord: Fifth and Fourteenth Amendments of U.S. Constitution)
DEPRIVATION AND DENIAL OF TRIAL BY JURY:
“Whereas ward's right in this “suit[] at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved” (see e.g., Seventh Amendment, U.S. Constitution), by what right was this guaranteed right abridged and denied in many of the proceedings, in which the 'value in controversy' consisted of a large monetary award -and the ward's life?”
(Accord: SPARF v. U.S., 156 U.S. 51 at 106 (1895), in which the U.S. Supreme Court held that “No instruction was given that questioned the right of the jury...On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine-applying to the facts the principles of law announced by the court...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.”) (Accord: Chapter 86, Fla.Stats: §§86.011 “Jurisdiction of trial court.--The circuit and county courts have jurisdiction...”; 86.071 “Jury trials...the issue may be tried as issues of fact are tried in other civil actions...the issues may be submitted to a jury...”; 86.101 “Construction of law.--This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.”; 86.111, Fla.Stats. “Existence of another adequate remedy; effect.--The existence of another adequate remedy does not preclude a judgment for declaratory relief...”) (Accord: RULE 1.430(a),Fla.R.Civ.P. “Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.”)
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(The authorities cited above to justify protection under this right are numerous and varied; perhaps this is the most protected right: Trial by Jury is protected by U.S. Constitution, Federal Case Law, State Statutes, Florida Rules of Civil Procedure, and probably others, but this overview is in no way a complete treatise.)
See also controlling precedent in quotes of the constitutional forefathers:
Thomas Jefferson wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
As stated by James Madison, considered by many to be the “Father of the Constitution,” “In suits at common law, a trial by jury is as essential to secure the liberty of the people as any one of the pre-existing rights of nature.”
America's second President, John Adams, said in 1771: “It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
RECAP TO PREVIOUS DEPRIVATION OF LIBERTY:
“Considering supra, by what right did the lower tribunals deny the guaranteed constitutional and statutory rights to trial by jury?” (Inequity of law.)
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THE MANNER OF DENIAL OF TRIAL BY JURY, IN THE INSTANT CASE, IS ALSO A VIOLATION OF EQUAL PROTECTION CLAUSES:
“Considering supra, by what rights do lower tribunals grant jury trials to mere nonfatal crimes and charges, but deny same in what is a life or death decision in the courts of inequity?” (Inequity of comparison, a violation of “Equal Protection,” as “Unequal Protection” is given to “lesser, nonfatal ‘crimes’.”)
EVEN AFTER ONE TRIAL BY JURY, DEPRIVATION OF LIBERTY EXISTS:
Considering that “no fact tried by a jury [such as the rehabilitation award of about 750,000 U.S. dollars solely to be sued for physical therapy and care], shall be otherwise examined in any court of the United States [prohibited by res judicata and collateral estpoppel], than according to the rules of common law,” by what right did the lower tribunals in question consistently deny the rights for the great monetary settlement, in which the courts have ordered that Theresa Schiavo’s $750,000 be used for other, unauthorized, purposes, such as attorney fees?” (Contravening Seventh Amendment, U.S. Constitution and violating §§400.6095(2), (financial needs), 744.3215(1)(h), (retained right for proper financial management) and 733.504, Fla.Stats. “Removal of personal representative; causes for removal.--A personal representative may be removed and the letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:
(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
(5) Wasting or maladministration of the estate.
(9) Holding or acquiring conflicting or adverse interests against the estate that will
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or may interfere with the administration of the estate as a whole...” (Accord: §§744.309(3), “DISQUALIFIED PERSONS”; 744.474(18), other “Reasons for removal of a guardian”; 744.474(16), Fla.Stats. “--A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law: (16) The improper management of the ward's assets”)
TERRI SCHIAVO IS DEPRIVED OF THE RIGHT TO HAVE A QUALIFIED GUARDIAN - FAILURE TO COMPLY WITH COURT ORDERS:
“Considering guardian Michael Schiavo's refusal to comply with a 1996 Court Order to furnish the annual guardianship reports, by what right does he retain guardianship, in violation of §§733.504(3), and 744.361(3), Fla.Stats. 'The guardian shall file a guardianship report annually in accordance with §744.367.'?” (Authority for this removal given under: §744.474(5), Fla.Stats. “A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law: (5) Failure to comply with any order of the court.” Emphasis supplied: Note: It does not say “may” file a guardianship report; It says “shall” file same.)
TERRI SCHIAVO IS DEPRIVED OF THE RIGHT TO HAVE A QUALIFIED GUARDIAN - DISSOLUTION OF MARRIAGE:
“In light of §765.104(2),Fla.Stats. 'Unless otherwise provided in the advance directive or in an order of dissolution or annulment of marriage, the dissolution or annulment of marriage of the principal [automatically] revokes the designation of the principal's former spouse as a surrogate,' and the holdings of the Fla. 2nd DCA, regarding automatic dissolution of marriage, by what right does Michael Schiavo retain guardianship?” (Schiavo’s present living arrangements amount to his
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desertion of the marital relationship, a well-settled fact basis for dissolution of a marriage. Burton v. Burton, 448 So.2d 1229 (Fla. 2d DCA 1984); Wilburn v. Wilburn, 143 So.2d 518 (Fla. 2d DCA 1962); Accord: chapter 798,Fla.Stats.)
TERRI SCHIAVO IS DEPRIVED OF THE RIGHT TO HAVE A QUALIFIED GUARDIAN - BY VIOLATION OF YET OTHER REQUIREMENTS:
“In light of the clear language of §435.03(2)(o),Fla.Stats., by what right does estranged husband retain guardianship?” (Emphasis added for clarity) (§435.03(2) Fla.Stats. “Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: (o) §798.02, relating to lewd and lascivious behavior.” Michael Schiavo, as guardian, has admitted in open press, an adulterous relationship, in violation of chapter §§798.01 and 798.02,Fla.Stats.; Adjudication then becomes moot.)
TERRI SCHIAVO IS DEPRIVED OF THE RIGHT TO HAVE A QUALIFIED GUARDIAN - BY VIOLATION OF MISMANAGEMENT REQUIREMENTS:
“In light of §744.446,Fla.Stats. 'Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty,' by what right does guardian still retain guardianship?” (Accord §744.474(7),Fla.Stats. “A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law: (7) The wasting, embezzlement, or other mismanagement of the ward's property.” Emphasis added - “Prohibited,” in §744.446,Fla.Stats., supra does not merely mean “please try not to do it,” but, instead, clear and unambiguous language meaning: Mr. Schiavo clearly violated the jury award by misappropriation of funds, set for therapy, care, rehabilitation, not legal fees. He got his cut, which was sizable, so he had no excuse to steal his wife’s share. ACCORD §825.103(2)(a), Fla.Stats., FELONY Exploitation of an elderly person or disabled adult, a First Degree Felony when the funds misappropriated are greater than 100,000 U.S. dollars, as is the case at bar.
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THERESA IS DEPRIVED OF NUMEROUS RETAINED RIGHTS, SOME OF THEM FELONIES AND CITED IN PASSIM, IN THE INSTANT BRIEF:
“By what right does the husband exceed both State and Federal Laws -and court orders -regarding removal of feeding tube to impose an environment threatening to deny food and water -as he has done in the past -and now deny rehabilitation, medical services -such as antibiotics and pap smears -necessary to avoid an unnecessary death by infection - current deprivations of liberty in stark violation of STATE and FEDERAL LAWS -and also by what rights does he deny annual review of the guardianship report, plan, prudently manage Theresa's finances, allow visitors and counsel in court, etc.?” (See: Federal holdings regarding counsel on page 13 of this brief: Theresa is due at least as much right -if not more.)
BY WHAT RIGHT IS TERRI DEPRIVED OF TESTING/EXAMINATION, SEPARATE AND DISTINCT FROM REHABILITATORY THERAPY, CITED SUPRA?
“Besides denying rehabilitation and therapy, supra, by what right does the guardian deny testing, such as swallowing and other mere examinations?” (Cite: Schindler v. Schiavo, 800 So.2d 640, at 646 (Fla. 2d DCA 2001)), in which the court held “...the opinions of the remaining doctors may have been limited by their inability to examine Ms. Schiavo or obtain necessary diagnostic information...”) (Emphasis added)
EUTHANASIA:
“By what right is an attempted euthanasia performed?”
PHYSICAL DETENTION:
Although this deprivation of liberty would alone be sufficient to justify issuance of a habeas writ, it is also true that Terri Schiavo is illegally held at Woodside
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Hospice House. (While Terri is physically located at the retirement center shown in the certificate of service, this relocation is temporary due to renovation and repairs being done at the Woodside.)
THE ARGUMENT FOR SUPRA:
In order to receive federal payment for hospice care, within Federal Medicare guidelines, the Woodside facility must obtain a certification from the attending physician within two calendar days of initial admission that the patient’s “prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course.” 42C.F.R.§418.22(b) (FEDERAL LAW) It is clear, after roughly three (3) years of residency at Woodside, that Terri is not “terminal” within the 6 month definition above. Although some people would certainly like to see Terri dead (and have almost killed her), these attempts to abridge or violate her rights under state and federal abuse laws do not constitute a “terminal” condition. Such reasoning, when it has apparently been used in the past, is circular logic: “Since we want to kill her, that must make it right automatically.” Not.
In addition, any attempts by Woodside to circumvent the law, simply because Terri is not physically located at Woodside, are futile: Woodside cannot move a person out of its facility and then argue, by its own act of moving her, that this person's right to habeas review is somehow limited. The right to habeas corpus relief is a fundamental right central to the protection of liberty.
See, e.g., Allison v. Baker, 11 So.2d 578, 578 (Fla. 1943) (“The writ is venerated by all free and liberty loving people and recognized as a fundamental guaranty and protection of their right of liberty.”). Woodside cannot diminish, or, in Ms. Schiavo’s case, eliminate that right merely by moving someone to a different facility.
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Specific Identity of Respondents and Relief sought:
RELIEF: A Writ of Habeas Corpus, which would ask the “test” questions above -of: RESPONDENTS, guardian, Michael Schiavo, and the facility(ies) now holding Theresa Schiavo.
Should relief not be granted, it would set precedent, thereby that if Theresa Schiavo should be illegally starved, deprived of needed medical services, she being “somewhat conscious,” yet, were another to be paralyzed, unable to speak (like Dr. Stephen Hawking, alive, but less able to communicate), he/she, upon checking into a hospital/hospice/retirement home, would be even more quickly deprived (of a certainty), the standards of habeas relief having been eliminated or compromised. This fate could happen to anybody. This is dangerous and frightening. See e.g.,:
From: http://www.CatholicCulture.org/docs/doc_view.cfm?recnum=5524
“Marjorie Nighbert signed an “advance directive” before she was hospitalized for a stroke in 1996. This document stated that she desired no “heroic measures” Based on this, her family requested that her feeding tube be removed. When Ms. Nighbert begged for food, the courts deemed her 'not medically competent to ask for such a treatment,' and the hospital physically restrained her in bed so that she could not pilfer food from other patients. She died ten days later.” [Note: This citation from the Catholic Culture website was verified as correct from numerous independent sources, not the least of which is Focus on the Family.]
Therefore, the new ethic in Florida Hospitals necessitates new motto: “FLORIDA HOSPITALS/HOSPICES: You check in, ...but you don't check out.”
QUESTION IN SUMMARY: “Are you safe in a hospital/hospice if you are mute, paralyzed, or unconscious?”
ANSWER IN SUMMARY: If Theresa is not afforded Habeas protection, then this could (and will eventually) happen to anybody with more certainty.
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C. Standing: Who has “standing” to represent Theresa Schiavo in this proceeding?
Can Theresa Schiavo represent herself? No.
She is both prohibited by state law (cite: §744.3215,Fla.Stats. “Rights of persons determined incapacitated.--(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right: (b) To sue and defend lawsuits”), and she is physically unable to speak, and possibly unable to think coherently, but the latter is not certain. (Example: Award winning physicist, Dr. Stephen Hawking cannot speak without his personal computer, and otherwise appears “PVS,” but he can certainly think. See pp. 52-57 in the instant brief: “Cases Similar to Schiavo.”)
Can estranged husband and guardian (Michael Schiavo) represent her? (See e.g., §744.309(1)(a),Fla.Stats. “Any resident of this state who is sui juris and is 18 years of age or older is qualified to act as guardian of a ward.”) No. He is the very person inflicting the bulk of the deprivation of liberties, many of them life threatening and quite illegal. He cannot represent her in these proceedings, due to prohibitive conflict of interest. He must recuse himself and petition for appointment of a GAL (Guardian ad litem).
(Cite: §744.391,Fla.Stats. “If an action is brought by the guardian against the ward, or vice versa, or if the interest of the guardian is adverse to that of his or her ward, a guardian ad litem SHALL be appointed to represent the ward in that particular litigation. In any litigation between the guardian and the ward, a guardian ad litem SHALL be appointed to represent the ward. If there is a conflict of interest between the guardian and the ward, the guardian ad litem SHALL petition the court for removal of the guardian...” (Emphasis Added) Accord: §744.102(9),Fla.Stats. “'Guardian ad litem' means a person [any person can be
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GAL, not necessarily a lawyer] who is appointed by the court having jurisdiction of the guardianship or a court in which a particular legal matter is pending to represent a ward in that proceeding.” Husband Schiavo cannot be either guardian or GAL for Theresa here.
(Guardian, Michael Schiavo, without first obtaining authority of §744.3725,Fla.Stats., illegally exercised rights described under §744.3215(4),Fla.Stats., specifically by ordering experimental “electrode” therapy for his ward and wife, Theresa.) Guardian did not comply with the zealous advocacy standard regarding financial and fiduciary management, as he is required to do. Accord: Rodriguez v. Levin, 524 So.2d 1107 (Fla. 3d DCA 1988).
Can a lawyer represent Theresa?
In theory, “yes.” (cite: §744.3215(1)(l),Fla.Stats. “A person who has been determined to be incapacitated retains the right: To counsel.”) In practice, “no.” The Fla. 6th Circuit Court has deprived Theresa of counsel in court (the judge acting as both neutral arbiter or the law -and counsel or guardian, inviting all writs of prohibition).
See e.g., §744.309(1)(b),Fla.Stats. “No judge shall act as guardian after this law becomes effective, except when he or she is related to the ward by blood, marriage, or adoption, or has maintained a close relationship with the ward or the ward's family, and serves without compensation.” (Emphasis supplied) (This denial of appointment of GAL constitutes a violation of both State Law cited above and Due Process under State and Federal definitions: Art.I§9,Fla.Const., “Due process.--No person shall be deprived of life, liberty or property without due process of law...” Accord: Amendment V, U.S.Const.; and possible Equal Protection: Amendment XIV, U.S.Const.)
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Can a GAL (Guardian ad litem) represent Theresa? In theory, “yes.” (cite: §§744.391; 744.102(9),Fla.Stats., quoted supra) In practice, “no.” The Fla. 6th Circuit Court's chief judge appointed GAL, Dr. Jay Wolfson, in accordance with the disputed Public Law 03-418 (colloquially known as “Terri's Law”). However, Chief Judge Demers felt that the lawmakers were just joking when they passed these other state statutes, supra, (not in dispute or being otherwise challenged as “unconstitutional”) regarding appointment of a GAL, which are laws not being challenged in court as is Public Law 03-418. Judge Demers showed the highest disrespect for the laws, by refusing to appoint a GAL:
(Schindler v. Schiavo, slip No.: 90-002908-GD-03, “CHIEF JUDGE’S ORDER DENYING RE-APPOINTMENT OF GUARDIAN AD LITEM” ; Fla. 6th Judicial Circuit, 08 January 2004, David A. Demers, Chief Judge, 6th Judicial Circuit, Southern Second Reporter reference presently unavailable; Likewise, the Probate Court in this cause has refused to appoint a GAL, in the face of these statutes and laws, thus inviting prohibition writs from the higher courts. This denial of appointment of GAL -like the parallel denial of appointment of counsel in court -constitutes a violation of both State Law cited above and Due Process under State and Federal definitions: Art.I§9,Fla.Const., “Due process.--No person shall be deprived of life, liberty or property without due process of law...” Accord: Amendment V, U.S.Const.; and possible Equal Protection: Amendment XIV, U.S.Const.)
(Clarification: So far, writs of prohibition are justified by (a) the various judges acting illegally refusing to appoint a GAL / counsel in court; and (b) at least one judge acting as guardian, but this section deals with Habeas, so these arguments shall be reserved for arguments infra.)
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Can the immediate family intervene, with the representation of family attorney, Pat F. Anderson, Esq.? No.
The courts have illegally denied interveners' rights, in direct violation of the “Morgareidge intervention rule.” (See e.g., Morgareidge v. Howey, 78 So. 14 (Fla. 1914)), which allows intervention by all parties who have interest in the outcome of a case.) The District Court of Appeal (Schindler et ux. v. Schiavo, No. 2D03-5200 (Fla. 2d DCA Feb. 13, 2004)), did not enforce this rule, only reversing and remanding for “further proceedings consistent with this opinion,” in which the trial court was chastised for not addressing, explaining, or justifying its actions. While the “intervention” in question was with regard to the “Terri's Law,” nonetheless, the Schindler family has gotten the general picture that it may not intervene in any civil, appellate, or probate matter at all, with regards to its daughter and sister, Theresa. (Alternatively, if it does intervene, then the outcome is predetermined to uphold the law -only if it helps the estranged husband -but a predetermined decision to refuse to uphold any laws if they accord any rights to Theresa Schiavo -as observations in this brief indicate.) Further, even if the pending litigation is resolved in favor of Terri Schiavo regarding the guardianship reports, this will only force guardian Michael Schiavo to provide annual medical and guardianship reports -all the while as he continues commissions of class II and III felonies, one of them eventually killing Theresa Schiavo.
So, who can intervene?
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AFFIRMATIVE ANSWER:
In theory, the immediate family should have more standing to be “next friend,” than Petitioner Watts, but they have ceded and defaulted, possibly due to the overwhelming case load of family attorney, Pat Anderson, and certainly due to financial inability to hire a second attorney (Attorney Anderson is said to be working pro bono for the Schindlers) -and due to the fact that the Schindler family are not able to file legal papers as is the Petitioner, Gordon Wayne Watts, in the instant case at bar. In addition, one more factor in inaction by the Schindler family may be frustration with obtaining justice as described supra, specifically illegal acts by the trial courts, which would be a proper subject to the writs of prohibition, should they be issued.
While it would be much preferable for several family members, with Theresa's interests at heart, to be appointed as “next friends” interveners in these habeas proceedings (and probably in the probate issues, but that is not being litigated here), nonetheless, even after much prodding, they do not.
** With regards to standing, if the immediate family does not affirmatively object to Petitioner Watts' standing --and offer, by their own petitions, to stand in his place, then Petitioner's standing is established by default as the “next friend,” even if not the “'closest' friend.”
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Should Theresa's rights under law be abridged due to human limitations of the immediate family?
While Petitioner, Watts, can not intervene in the ongoing probate issues (he is not an attorney, and has not been admitted pro hac vice, as a special circumstance, and, in fact, is trained in Biology and Chemistry, Bachelor of Science with honors and Electronics, Associate in Science, formally, -not law), nonetheless a review of the broken law, with respect to “standing,” is in order here:
The Writ of Habeas Corpus, sometimes called the “Great Writ,” may be filed “by a person [any person, not limited to a family member, neighbor, or friend] who objects to his own or another’s detention or imprisonment,” and is issued by the court when there are legal or factual bases to demand justification for the detention or imprisonment in question. (From: http://www.LectLaw.com/def/h001.htm -- comments added in brackets).
If these standards are not followed, then the result for Ms. Schiavo -and for the “Rule of Law” -will be fatal. I.e., it will be OK to violate any state law, federal law, case law, and the various constitutions -again, a dangerous prospect.
This petition is in objection to another’s treatment. “Potentially, ANY deprivation of personally liberty can be tested by habeas corpus, and for that reason it is often called the Great Writ.” (The Operation and Jurisdiction of the Florida Supreme Court, Gerald Kogan and Robert Craig Waters, 18 Nova L. Rev. 1151, at 608. (Fla. 1994); Accord: State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 461, 152 So. 207, 209 (Fla. 1933) Emphasis added).
The courts, in Deeb, find that a friendly person [any person, not limited to a family member, neighbor, or friend] in the interest of person illegally detained may file a
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petition for writ of habeas corpus; and, that to be a “next friend,” one “must provide an adequate explanation [see supra for such explanation] --such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf.” Whitmore v. Arkansas, 495 U.§149, at 163 ; 110 S.Ct. 1717 ; 109 L. Ed. 2d 135 (1990); and that “The alleged harm must be actual or imminent, not 'conjectural' or 'hypothetical.'” Whitmore, 495 U.S. at 155, 110 S.Ct. at 1723. (Emphasis supplied)
“Even detention imposed on someone by a private individual [such as estranged husband and guardian] potentially can be tested by habeas corpus. The most common use is where one parent alleges that the other parent has taken custody of a child wrongfully.” (Jurisdiction, Gerald Kogan and Robert Craig Waters, 18 Nova L. Rev. 1151, at 624. (Fla. 1994), citing Crane v. Hayes, 253 So.2d 435 (Fla. 1971); Porter v. Porter, 53 So. 546 (Fla. 1910)) See also: Doroucher v. Singletary, 623 So.2d 482, 485 (Fla. 1993), in which The Court found that the target of the Habeas petition needed to voluntarily reject said offer himself. (No requirement in holding to reject offer for habeas relief via, say, a proxy with a conflict of interest, such as guardian, Michael Schiavo) ; Whitmore v. Arkansas, 110 S.Ct. 1717, 1727(1990), in which the United States Supreme Court has held that in order to appear before the Court as “next friend,” an individual [any individual, not limited to this or that] “must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf.”
These courts are all saying the same thing; it must be true: Any individual may assert next friend rights and declare standing - if the guidelines are met.
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CONCLUSION: HABEAS PETITION
Schiavo is under constant threat or is in jeopardy in her surroundings. Up until this point, the illegal deprivation of liberties have not been properly challenged or tested by Habeas or Quo Warranto - and the only attempt to issue a writ of Mandamus was to compel the State's Governor to uphold the law, when a more appropriate use of this writ would have been to direct it to the local police. The Writ of Prohibition has not ever been directed to the courts for their overstep in authority in regards to prohibiting therapy or rehab prior discussed, as well as counsel in court, and the deprivation of liberties from Theresa have proceeded by default. Woodside Hospice and other respondents would no doubt have This Court believe that Petitioner lacks standing to proceed in this action. I disagree. The United States Supreme Court has held that in order to appear before the Court as “next friend,” an individual “must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf.” Whitmore v. Arkansas, 110 S.Ct. 1717, 1727(1990). I do not read Durocher v. Singletary, 623 So.2d 482 (Fla. 1993), as holding otherwise. Petitioner Watts now raises in This Court the allegation that the trial courts' previous holdings preventing representation in court (by either “zealous advocate” GAL and/or by counsel) are based on a faulty premise -e.g., that Theresa Schiavo had the ability to speak for herself - or be objectively represented. Neither the State nor the respondents contest Watts' present assertions undermining that premise: that Ms. Schiavo in fact was diagnosed as incapacitated, hence unable to speak for herself. Habeas corpus is supposed to be a “speedy method of affording judicial inquiry into the cause of ANY alleged unlawful custody.” Porter v. Porter, 53 So. 546,547 (Fla. 1910). (Emphasis supplied)
May it indeed be speedy.
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Argument II
Quo Warranto lies to ask by what right or authority an act is done.
A. Jurisdiction: TITLE 28 U.S.C. § 1651. Writs - Cf. state laws infra.
Although Quo Warranto proceedings, in practice, usually involve “state officers and state agencies” (Art.V,§3(b)(8),Fla.Const.), “The Florida Supreme Court has held that ANY citizen may bring suit for quo warranto if the case involves ‘enforcement of a public right’.” (Jurisdiction, Kogan and Waters, at note 37, citing Martinez v. Martinez, 545 So.2d 1338 at 1339 (Fla. 1989), State ex rel. Pooser v. Wester, 170 So. 736, 737 (Fla. 1936)). (Emphasis supplied.) (Accord: RULE 9.030(b)(3),Fla.R.App.P.)
B. Identity of respondents and relief sought
There are four targets of this Quo Warranto: (1) Woodside Hospice; (2) Drew Gardens Retirement Community; and, (3) The Pinellas Park City Police.
(A) By what right did/do the hospice/retirement center workers illegally deprive incapacitated Terri Schiavo of food and water - above and beyond the removal of feeding tube? (By what right do they deny visitors, therapy, etc.?)
(B) By what right do the City of Pinellas Park Police Department refuse to uphold the mercy killing laws - and by what right do said Police use force to enforce this illegal act?
Furthermore, (4) There are potentially other “state officers and state agencies” who could be targeted for the “enforcement of a public right,” and they are listed in the instant brief as targets of mandamus, infra, so they will not be repeated here, but formal petition is being made to This Court for Quo Warranto relief for all of them. “By what right do these entities refuse to act -or actively block investigation and enforcement of the laws of the state and nation?”
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For the purposes of this petition, the city police are certainly an agency of the state, even if under city municipality authority. The hospice and retirement center workers, while private citizens, operate under the auspices of the state licensing agencies for doctors, nurses, and staff employees.
Thus, Quo Warranto may issue to test the validity of their actions, pursuant to the statement of law, which prohibits their actions.
C. Standing: “Standing to seek quo warranto can be inclusive...ANY citizen may bring suit for quo warranto...” (Jurisdiction, cited supra)
Argument III
The Writ of Prohibition lies to prohibit the lower courts from entering any unlawful orders
A. Jurisdiction: TITLE 28 U.S.C. § 1651. Writs - Cf. state laws infra.
This Court has jurisdiction. “A district court of appeal may issue writs of...prohibition...” (See e.g., Art.V,§4(b)(3),Fla.Const.; Accord: RULE 9.030(b)(3),Fla.R.App.P.)
B. Identity of respondents and relief sought
Potentially, the deprivation of liberty [e.g., the withholding of “regular” food -and- water], while not ordered by the lower courts, are as a result of their orders. However, the withholding of physical therapy and other rehabilitations were ordered by the lower courts. (See note [6], page 15 of this brief.) This constitutes a deprivation of Equal Protection, as defined by State and Federal Constitutions, therefore this is an unlawful order, subject to the rare Writ of Prohibition. Additionally, it was this deprivation of liberty [lack of therapy] that placed Terri Schiavo into the condition whereby she could allegedly not tolerate “regular” food
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and water. Thus, the hospice and the lower courts are civilly liable (cf.: 42U.S.C.§1983, discussed infra) for Ms. Schiavo’s inability to eat or drink, and thus, the removal of feeding tubes would, colloquially, be known as “rubbing salt into the wound,” or “kicking her when she is down,” because she was deprived of rehab treatment - and then - subsequently, denied both feeding tube [marginally legal] and “regular” food and water [explicitly illegal].
(Note: These “finding of facts,” such as the allegation Terri would not want to live in this condition are normally untouchable by review in appeal, but this is not always so. See page 43 of the instant brief for a discussion. Still, the “finding” that Terri would want to have no feeding tubes has no legal bearing on the petitions in the case at bar: The laws are a standard to be followed, not broken.)
The hospice workers or City Police did not let the law get into the way of their desire to execute an illegal act, namely carry out an unauthorized and illegal mercy killing. (Or, assuming she was consenting - this contention is in dispute -it would constitute assisted suicide. If it were found that Theresa were unwilling, this attempt would raise the specter of an attempted felony murder, a violation of §782.051, Florida Statutes; Cf.: §782.07,Fla.Stats. Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.-- ). The local police, generally, and the attorneys for the police department, specifically, aided and abetted in the commission of class 2 and class 3 felonies, not permissible by the bar in Florida.
It is well known that both prosecution and defense must be zealous but fair in their presentations.
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Thus, even the most heinous criminal is due a defense, and the City Police Department is no exception: They must be given a defense for their crimes, but no attorney is ever permitted to encourage or sanction a commission of crime. Attorneys are generally required to reveal any plans by clients who give admission of intention to commit any crimes --even when revealed confidentially, as in “attorney client” privilege.
This basis arises out of the fact that “[a]ttorneys are not state or county officers but they are officers of the Court.” (Petition of FLORIDA STATE BAR ASSOCIATION, et al., 40 So.2d 902, at 903, note 8, “Attorney and client”)(Fla. 1949)
Prohibition in Florida, however, only lies to prohibit future act of lower courts, not agencies of the state, such as the local police department or their attorneys. Thus, detailed discussion of this shall be reserved for discussion of mandamus enforcement of their duties, infra.
Authorities:
§765.101(12)(a),Fla.Stats.: “'Persistent vegetative state' means a permanent and irreversible condition of unconsciousness in which there is: The absence of voluntary action or cognitive behavior of ANY kind.” (Emphasis added)
§744.3215,Fla.Stats.:
(1) A person who has been determined to be incapacitated retains the right:
(a) To have an annual review of the guardianship report and plan.
(i) To receive necessary services and rehabilitation.
(l) To counsel. (Emphasis added)
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Previous arguments have argued that denial of counsel in court or appointment of GAL constitute possible violations of Due Process and Equal Protection:
“When facts are to be considered and determined in the administration of statutes, there must be provisions prescribed for due notice to interested parties as to time and place of hearings with appropriate opportunity to be heard in orderly procedure sufficient to afford due process and equal protection of the laws…” Declaration of Rights, §§ 1,12. McRae v. Robbins, 9 So.2d 284, 151 Fla. 109. (Fla. 1942)
The trial court's failure to prosecute and/or the local law enforcement's failure to bring charges and investigate in a timely manner may not be generally held against the person seeking relief or the victim:
“Delay in the prosecution of a suit is sufficiently excused, where occasioned solely by the official negligence of the referee, without contributory negligence of the plaintiff, especially where no steps were taken by defendant to expedite the case.” Robertson v. Wilson, 51 So. 849, 59 Fla. 400, 138 Am.St.Rep. 128. (Fla. 1910)
Sinc