Good intentions will always be pleaded for every assumption of authority.
By HOWARD TROXLER
Published May 13, 2004
- Daniel Webster
The law rammed through the Legislature last October to hijack the case of Terri Schiavo, who lingers in a vegetative state on a feeding tube, was a spectacularly bad piece of legislation.
The single-page, rush job of a law had no thought behind it. There was no debate, no testimony, no input from the people of Florida. It was a quick grab for power, a knee-jerk reaction to the day's headlines.
That law purported to grant Gov. Jeb Bush the king-like power to wave a magic wand, sweep aside years of court rulings, seize Schiavo's body and reinsert her feeding tube. Bush did so immediately.
Last week, Pinellas Circuit Judge W. Douglas Baird did his duty and declared the Legislature's rush job unconstitutional.
Baird's 23-page ruling is important. It spells out exactly the ways in which the Legislature trampled over the rule of law.
Most important, Baird did precisely what my conservative brothers and sisters insist that they like in a judge - he applied the Constitution, rather than relying on his own goals or values. (The quote from Daniel Webster above is from Baird's ruling.)
Baird did precisely the opposite of the "conservative" Legislature, which shamelessly passed a law that it knew to be flawed.
First of all, what the Legislature passed was not much of a "law" at all. It was a brute grant of power to the governor to decide for himself when and where to throw out the rulings of the courts. There were no criteria or specifics spelled out, Baird noted.
This is one of the most fundamental rules of our Constitution. One branch of the government cannot give away its power to another. The Legislature cannot pass a law saying, "What the heck, we're granting carte blanche power to the governor to decide all this stuff, no strings attached."
Yet the act passed by the Legislature did exactly that. The governor may decide to act under this law, or he may not - there are no criteria; he can behave differently from citizen to citizen according to his whim. The governor may choose to lift the stay when he feels like it; he doesn't have to; there are no legal reasons spelled out. He has, Baird notes, "unfettered discretion."
The second reason Baird found the law unconstitutional is that it ignores the bedrock right of privacy that is spelled out in the Florida Constitution.
A patient's own wishes not to receive life-prolonging care in a vegetative state counts for absolutely zip under this law. The governor has unilateral power to overrule the patient's own wishes. The state failed to prove it had a "compelling interest" in doing so.
Thirdly, Baird wrote, in his choice to use this general grant of power in Schiavo's case specifically, Bush improperly seized a case that had been settled by the courts.
It just doesn't work that way. The Legislature cannot pass a law saying, "We give the governor the power to reach over into the judicial branch and throw out any court rulings he doesn't like, and substitute his own judgment."
Baird's fourth and final point deals with another bedrock idea in our law - the unfairness of passing laws retroactively. You can't reach back in time and change the rules or take away rights after the fact.
The Legislature could never pass a law saying, "We have decided that what you did last year, even though it was perfectly legal then, is now illegal, so you are under arrest." Yet here the Legislature tried to rewrite Schiavo's own privacy rights, and the rules under which her wishes had been adjudicated.
Having spent all this time defending Baird's ruling, I freely admit that he might be wrong. Maybe Baird has misunderstood what the Constitution and the legal precedents actually say. This is why there is both a Second District Court of Appeal and, ultimately, the Florida Supreme Court.
But if I am asked to choose whom I trust more to uphold my rights under the Constitution - the folks in black robes, or the pious and posturing Legislature - then the choice is easy.
Feel free to disagree. It's a free country, after all - but only as long as there are checks and balances on our government.
