A challenge to the state law that forced doctors to reinsert a feeding tube is allowed to stay in Pinellas County.
By WILLIAM R. LEVESQUE
Published April 24, 2004
The lawsuit by Michael Schiavo challenging the constitutionality of the state law that forced doctors to reinsert his wife's feeding tube is staying in Pinellas County.
The 2nd District Court of Appeal ruled Friday that Pinellas, and not Tallahassee, is the proper venue for the lawsuit. It also rejected arguments by Gov. Jeb Bush's office that a Pinellas-Pasco judge lacked jurisdiction because Bush had not been properly served with the suit.
Bush wasn't formally served with the lawsuit until nearly a month after it was filed.
But the court noted that Bush's lawyers participated in an emergency hearing the same day the suit was filed, Oct. 21, which is the day "Terri's Law" was passed.
At that hearing, the governor's lawyers never objected to venue or argued Bush has been improperly served, the appeals court said.
"We conclude that by participating in the hearing through counsel ... the governor submitted to the jurisdiction of the trial court," the court ruled.
The ruling opens the door for a Pinellas-Pasco circuit judge to quickly rule on the constitutionality of "Terri's Law."
Judge Douglas Baird had said he would wait until the appeals court cleared the venue and jurisdiction questions before releasing his ruling on a motion for summary judgment. In that ruling, he is expected to declare the law unconstitutional.
That will set up another round of appeals to first the 2nd District Court of Appeal and ultimately the Florida Supreme Court.
"The governor has run out of delaying tactics," said Howard Simon, the executive director of the American Civil Liberties Union of Florida, which is working on the case with Schiavo's lawyers. "But it's not beyond the governor's lawyers to concoct some other delaying tactic. But we're inching closer to a final judgment in the case."
Bush spokesman Jacob DiPietre said the governor's legal staff was reviewing the order to decide whether any avenue of appeal is available.
"We're, of course, disappointed in the ruling," DiPietre said. "But we will continue to defend the constitutionality of this law."
A doctor reinserted Terri Schiavo's feeding tube in October after state lawmakers adopted "Terri's Law." Mrs. Schiavo has been in what some doctors call a persistent vegetative state since suffering cardiac arrest in 1990.
Mrs. Schiavo's feeding tube had been removed for six days before the new law allowed the governor to order it reinserted.
The appeals court said a venue change from Pinellas to the state's capital was unnecessary under a legal theory called the "sword-wielder" doctrine.
Any lawsuit against the state would normally have to be filed in Tallahassee. But under this doctrine, a person can file suit against the state in their home county if the suit is designed "to shield (a person) from an attack ... by the state's sword," according to the appeals court.
