Schiavo case: Walter Weber needs to read the Florida State Constitution

“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:

In the Schiavo case, the state courts had previously ruled that Michael Schiavo, as Terri’s guardian, should withdraw the tube that provided food and fluids to Terri. Because Terri’s Law “allows the executive branch” — in this case, Governor Bush — “to interfere with the final judicial determination,” the state supreme court declared the law “without question an invasion of the authority of the judicial branch” and thus unconstitutional.


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:

Or suppose a court has awarded custody of a child to someone (for example, in divorce proceedings or through adoption). Does “separation of powers” mean the state child-protection agency — an executive-branch entity — may not intervene if it has strong evidence that the custodian is abusing the child?

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.

In Florida, the courts have adopted (made up?) a rule that says it is unconstitutional for the legislature to give the governor “too much” discretion in carrying out a program, as that would be an “unlawful delegation” of legislative power to decide law and policy.

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 Governor of Florida can’t pardon anyone unless two cabinet members agree to it. Anyhow, the pardon powers come directly from the Florida Constitution, not from the legislature – so this example tells us squat about how much legislative power the legislature can pass on to the Governor.
  • The governor’s emergency powers, while broad, are also extremely constrained – the governor can only use emergency powers under specific circumstances defined by the legislature, according to limits defined by the legislature (he can’t use emergency powers to end labor disputes or shut down newspapers, for example), and the legislature gets to declare the emergency over whenever they want – and the governor has no legal choice but to comply.

    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.]

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    9 Responses to Schiavo case: Walter Weber needs to read the Florida State Constitution

    1. 1
      Barbara says:

      I read the decision, and though I’m not an expert in Florida law, it seemed to make sense. The pardon issue is coming up in a lot of debates, but, in general, the power to pardon or commute is tightly circumscribed by state law, as you indicated. If people thought the least bit logically, they would realize that having such a veto power would make a governor akin to the clerical council of Iran (which can veto anything, including laws and judgments). I don’t know how many judges have reviewed the various parts of the Schiavo case, but it must be at least 10, and probably more, if you include the Florida Supreme Court.

    2. 2
      lucia says:

      The Guardian article on another Schiavo suit.

      I assume this ruling comes after the Supreme Court ruling. David Gibbs, an attorney for Terri’s parents, argue Terry would have changed her mind about being recuscitated if she had heard the Pope discuss the issue after she fell into the persistent vegatative state.

      I guess it’s not like speculating about what kind of car Jesus would drive if he lived today, right?

    3. 3
      NancyP says:

      Oh, National Review publishes just about anything. It isn’t picky about quality, only about ideology.

    4. 4
      Ampersand says:

      About that “Terri would have changed her mind if she heard the pope speak” lawsuit (which is indeed an entirely separate suit from the “Terri’s Law” case): To me, it seems like Terri’s parents’ lawyers are getting desparate and grasping at very slim straws indeed. But they have a right to try, I guess. Who knows, maybe they’ll convince a judge – stranger things have happened.

    5. 5
      lucia says:

      Well, reading the article, it sounds like that particular argument isn’t flying.

    6. 6
      david says:

      It seems to me that under specific circumstances as linked by Amp’s post – Terri’s law might possible fall under this

      “Reduction of vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural, technological, or manmade emergencies or hostile military or paramilitary action. ”

      Isn’t Terri’s life on the line? Doesn’t this action reduce her vulnerability to the loss of her life?

      Manmade emergencies is also defined somewhat broadly

      “(6) “Manmade emergency” means an emergency caused by an action against persons or society, including, but not limited to, enemy attack, sabotage, terrorism, civil unrest, or other action impairing the orderly administration of government.”

      I’d also like to point out that Amp changes what Mr. Weber rights to fit his own purposes. Weber says “In Florida, the courts have adopted (made up?) a rule that says it is unconstitutional for the legislature to give the governor “too much” discretion in carrying out a program, as that would be an “unlawful delegation” of legislative power to decide law and policy”

      Amp acts like this is equivalent with the part of the Florida Constitution he cites even though “too much” and “unlawful delegation” are nowhere in the part of the Constitution that he quotes. These seem like 2 separate things yet Amp equates them.

    7. 7
      Nomen Nescio says:

      no, Dave, Terri Schiavo’s life is not on the line. it’s already gone, and has been gone for fourteen years. what’s left is the biological life of her body, but the person that was Terri is long dead.

      Terri’s parents are making the mistake of confusing biological life functions for personal existence. it’s an understandable mistake, in their circumstances — they’ve lost a loved one, and one stage of grief is denial — but it is nonetheless a mistake. a person is more than a warm body, and what’s in that hospice bed is basically just a warm body now; it no longer has the capacity (the biological capacity, somewhat ironically) of being a person.

    8. 8
      College Student says:

      Nomen’s comment is right on.

      How can someone compare a husband’s agony for ten years to a parent abusing their child. It’s true that not everyone knows what goes on behind closed doors. How can one truly feel that Terri would want to live as a vegetable for another decade, or two, or three. How many of you can put yourself in her place, or her husbands and say that? The courts should definately have the decency and compassion for Terri and her husband to give the okay and let her go. Her parents and their lawyers should learn to stop being selfishly concerned, and quit beating themselves up about it.

      If you love someone, you have to let them go and move on. Life isn’t about being punished, it’s about release and vivacity. It isn’t black and white, it’s a vast gray area. It’s not about legalitys, its about common sense.

    9. 9
      JessO says:

      I wouldn’t really look at a pardon as overruling a judge’s rule because it doesn’t erase what has happened before, it just forgives the person for his crime and prevents further punishment doesn’t it?