“Alas” reader David points out this National Review article claiming that the Florida Supreme Court’s ruling overturning “Terri’s Law” “is an embarrassingly bad decision legally.” (If you’d like background info on this ruling, you can read the AP article about the ruling, or the ruling itself (pdf file). Links via Abstract Appeal.. For background on the Schiavo case generally, check out these links.)
The writer, a lawyer with the wonderful name Walter Weber, is one of the lawyers hired by Terri Shiavo’s parents to keep Terri’s body alive. If this article is an example of his legal acumen, however, then I don’t think it’s the judges on the Florida Supreme who should be embarrassed. Walter Weber writes:
Every time a governor pardons someone convicted of a crime, he “overturns” a judicial determination of guilt, and the judicial imposition of a sentence. So what?
So what? So overturning judicial determinations of guilt is a power the governor is specifically granted by the Florida State Constitution (and even then, the governor can’t go it alone – to issue a pardon, two cabinet members must support his decision).
Weber complains that “The supreme court of Florida made no effort to reconcile its decision in Bush v. Schiavo with the pardon power.” Probably that’s because the Court didn’t imagine that any of their critics would ignore the incredibly basic fact that the Governor’s pardon power is specifically granted by the Florida Constitution, whereas “Terri’s Law” is not.
Walter Weber continues:
Actually, if the court has already ruled on that specific evidence, then yes – separation of powers means that the state child-protection agency may not intervene further. A state social worker doesn’t have the right to overturn a judge’s decision.
But suppose it’s new evidence? Then of course, the social worker has every right to act upon the new evidence – which will lead, in due time, to a new trial and a new judicial ruling. In either case, the final decision is made by the judicial branch, and no other branch can overrule it.
Weber gives a couple more examples, but they’re the same thing – cases in which a new issue or new evidence turns up after a judge has ruled.
According to Weber, a new action made in response to a new event is the same thing as “overruling” a judge’s previous ruling. To see why Weber’s argument doesn’t hold water, consider this example: Joe Blow is arrested for jaywalking, serves his time, and is released from prison. Then he jaywalks again, and is arrested again.
Question: By arresting Joe Blow a second time, have police overturned the court’s previous conviction of Joe?
Of course not – that would be ridiculous. But that’s exactly the conclusion Weber’s flawed reasoning leads to.
Weber doesn’t know where this rule comes from? That’s stunning.
The law wasn’t “made up” by the judges – it comes from the Florida Constitution. Specifically, it comes from Article 2, Section 3, which says “No person belonging to one branch shall exercise any powers appertaining to either of the other branches.” (There are exceptions to that – but “Terri’s Law” isn’t one of them.)
Finally, Weber asks “how much discretion is too much?” But the court’s decision included a lengthy discussion of the discretion issue – yet that discussion, and the court’s logic, is totally overlooked by Weber’s essay. Instead, Weber claims – falsely – that the governor has virtually unlimited discretion in other cases, such as granting pardons and emergency powers, so it’s unreasonable of the judges to want some limits in this case.
But Weber is simply wrong to imagine the governor has unlimited discretion in the other cases he cites.
The “Terri’s Law” ruling was unanimous, and came to the conclusion that virtually every legal expert who isn’t employed by Terri Schiavo’s parents predicted. In fact, the court had no real choice but to rule this way – because they have no power to overturn the Florida Constitution.
I can understand why Weber – faced with a legally laughable case – is ignoring the Florida Constitution to try and make a respectable-looking argument. As my housemate Charles pointed out, the real question is, why is the National Review printing this nonsense?
[Edited to remove some snark.]