Supreme Court of Florida.

Jeb BUSH, Governor of Florida, et al., Appellants,

v.

Michael SCHIAVO, Guardian of Theresa Schiavo, Appellee.

No. SC04-925.

Sept. 23, 2004.

Rehearing Denied Oct. 21, 2004.

*323 Kenneth L. Connor and Camille Godwin of Wilkes and McHugh, P.A., Tampa, FL, and Robert A. Destro, Washington, DC, on behalf of Jeb Bush, Governor of the State of Florida; and Charles J. Crist, Jr. , Attorney General, George Lemieux , Deputy Attorney General, Chief of Staff, and Jay Vail, Senior Assistant Attorney General, Tallahassee, FL, for Appellant.

George J. Felos of Felos and Felos, P.A., Dunedin, FL, Randall C. Marshall, Legal Director of American Civil Liberties Union of Florida, Miami, FL, and Thomas J. Perrelli and Robert M. Portman of Jenner and Block, LLC, Washington, DC, on behalf of Michael Schiavo, as Guardian of the person of Theresa Marie Schiavo, for Appellee.

Jan G. Halisky , Clearwater, FL, and William L. Saunders, Jr., Director and Counsel, Washington, DC, for Center for Human Life and Bioethics at the Family Research Council, Amici Curiae; George K. Rahdert of Rahdert, Steele, Bryan and Bole, P.A., St. Petersburg, FL, and Max Lapertosa, Chicago, IL, for Not Dead Yet, Adapt, The ARC of the United States, Center on Human Policy, Syracuse University, Center on Self Determination, Disability Rights Center, Freedom Clearinghouse, Hospice Patients' Alliance, Mouth Magazine, National Council on Independent Living, National Disabled Students Union, National Spinal Cord Injury Association, Self-Advocates Becoming Empowered, Society for Disability Studies, TASH, World Association of Persons With Disabilities and World Institute on Disability, *324 Amici Curiae; Patricia Fields Anderson , St. Petersburg, FL, Barbara J. Weller and David Charles Gibbs, III of Gibbs Law Firm, P.A., Seminole, FL, Jay Alan Sekulow , James H. Henderson, Sr. , Walter M. Weber and David A. Cortman , Washington, DC, for Robert and Mary Schindler, Amici Curiae; Mary L. Wakeman , Russell E. Carlisle , Lauchlin T. Waldoch and Edwin M. Boyer , Tallahassee, FL, for the Academy of Florida Elder Law Attorneys, Inc., and the National Academy of Elder Law Attorneys, Amici Curiae; Scott M. Solkoff , Chair, Mary L. Wakeman , and Lauchlin T. Waldoch , Tallahassee, FL for The Elder Law Section of the Florida Bar, Amicus Curiae; and Jon B. Eisenberg and David S. Ettinger of Horvitz and Levy, LLP, Encino, California and Bruce G. Howie , St. Petersburg, FL, for 55 Bioethicists and Autonomy, Inc., Amici Curiae.

PARIENTE , C.J.

The narrow issue in this case requires this Court to decide the constitutionality of a law passed by the Legislature that directly affected Theresa Schiavo, who has been in a persistent vegetative state since 1990. [FN1] This Court, after careful consideration of the arguments of the parties and amici, the constitutional issues raised, the precise wording of the challenged law, and the underlying procedural history of this case, concludes that the law violates the fundamental constitutional tenet of separation of powers and is therefore unconstitutional both on its face and as applied to Theresa Schiavo. Accordingly, we affirm the trial court's order declaring the law unconstitutional.

FN1. The trial court, in an extensive written order, declared that the law was unconstitutional as a violation of separation of powers, as a violation of the right of privacy and as unconstitutional retroactive legislation. The Second District Court of Appeal certified this case as one of great public importance and requiring immediate resolution by this Court. We have jurisdiction. See art. V, § 3(b)(5), Fla. Const .

FACTS AND PROCEDURAL HISTORY

The resolution of the discrete separation of powers issue presented in this case does not turn on the facts of the underlying guardianship proceedings that resulted in the removal of Theresa's nutrition and hydration tube. The underlying litigation, which has pitted Theresa's husband, Michael Schiavo, against Theresa's parents, turned on whether the procedures sustaining Theresa's life should be discontinued. However, the procedural history is important because it provides the backdrop to the Legislature's enactment of the challenged law. We also detail the facts and procedural history in light of the Governor's assertion that chapter 2003-418, Laws of Florida (hereinafter sometimes referred to as "the Act"), was passed in order to protect the due process rights of Theresa and other individuals in her position.

As set forth in the Second District's first opinion in this case, which upheld the guardianship court's final order,

Theresa Marie Schindler was born on December 3, 1963, and lived with or near her parents in Pennsylvania until she married Michael Schiavo on November 10, 1984. Michael and Theresa moved to Florida in 1986. They were happily married and both were employed. They had no children.

On February 25, 1990, their lives changed. Theresa, age 27, suffered a cardiac arrest as a result of a potassium imbalance. Michael called 911, and Theresa was rushed to the hospital. She never regained consciousness.

*325 Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.

In re Guardianship of Schiavo, 780 So.2d 176, 177 (Fla. 2d DCA 2001) ( Schiavo I ).

For the first three years after this tragedy, Michael and Theresa's parents, Robert and Mary Schindler, enjoyed an amicable relationship. However, that relationship ended in 1993 and the parties literally stopped speaking to each other. In May of 1998, eight years after Theresa lost consciousness, Michael petitioned the guardianship court to authorize the termination of life-prolonging procedures. See id. By filing this petition, which the Schindlers opposed, Michael placed the difficult decision in the hands of the court.

After a trial, at which both Michael and the Schindlers presented evidence, the guardianship court issued an extensive written order authorizing the discontinuance of artificial life support. The trial court found by clear and convincing evidence that Theresa Schiavo was in a persistent vegetative state and that Theresa would elect to cease life-prolonging procedures if she were competent to make her own decision. This order was affirmed on direct appeal, see Schiavo I, 780 So.2d at 177, and we denied review. See In re Guardianship of Schiavo, 789 So.2d 348 (Fla.2001) .

The severity of Theresa's medical condition was explained by the Second District as follows:

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awareness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

Schiavo I, 780 So.2d at 177. In affirming the trial court's order, the Second District concluded by stating:

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing *326 evidence to answer this question as he did.

Schiavo I, 780 So.2d at 180 .

Although the guardianship court's final order authorizing the termination of life-prolonging procedures was affirmed on direct appeal, the litigation continued because the Schindlers began an attack on the final order. The Schindlers filed a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b)(2) and (3) in the guardianship court, alleging newly discovered evidence and intrinsic fraud. The Schindlers also filed a separate complaint in the civil division of the circuit court, challenging the final judgment of the guardianship court. See In re Guardianship of Schiavo, 792 So.2d 551, 555-56 (Fla. 2d DCA 2001) ( Schiavo II ).

The trial court determined that the post-judgment motion was untimely and the Schindlers appealed. The Second District agreed that the guardianship court had appropriately denied the rule 1.540(b)(2) and (3) motion as untimely. See Schiavo II, 792 So.2d at 558. The Second District also reversed an injunction entered in the case pending before the civil division of the circuit court. See id. at 562. However, the Second District determined that the Schindlers, as "interested parties," had standing to file either a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b)(5) or an independent action in the guardianship court to challenge the judgment on the ground that it is "no longer equitable for the trial court to enforce its earlier order." Schiavo II, 792 So.2d at 560 (quotation marks omitted). Nonetheless, the Second District pointedly cautioned

that any proceeding to challenge a final order on this basis is extraordinary and should not be filed merely to delay an order with which an interested party disagrees or to retry an adversary proceeding. The interested party must establish that new circumstances make it no longer equitable to enforce the earlier order. In this case, if the Schindlers believe a valid basis for relief from the order exists, they must plead and prove newly discovered evidence of such a substantial nature that it proves either (1) that Mrs. Schiavo would not have made the decision to withdraw life-prolonging procedures fourteen months earlier when the final order was entered, or (2) that Mrs. Schiavo would make a different decision at this time based on developments subsequent to the earlier court order.

Id. at 554.

On remand, the Schindlers filed a timely motion for relief from judgment pursuant to rule 1.540(b)(5) . See In re Guardianship of Schiavo, 800 So.2d 640, 642 (Fla. 2d DCA 2001) ( Schiavo III ). The trial court summarily denied the motion but the Second District reversed and remanded to the guardianship court for the purpose of conducting a limited evidentiary hearing:

Of the four issues resolved in the original trial ..., we conclude that the motion establishes a colorable entitlement only as to the fourth issue. As to that issue--whether there was clear and convincing evidence to support the determination that Mrs. Schiavo would choose to withdraw the life-prolonging procedures--the motion for relief from judgment alleges evidence of a new treatment that could dramatically improve Mrs. Schiavo's condition and allow her to have cognitive function to the level of speech. In our last opinion we stated that the Schindlers had "presented no medical evidence suggesting that any new treatment could restore to Mrs. Schiavo a level of function within the cerebral cortex that would allow her to understand her perceptions of sight and *327 sound or to communicate or respond cognitively to those perceptions." Schiavo II, 792 So.2d at 560. Although we have expressed some lay skepticism about the new affidavits, the Schindlers now have presented some evidence, in the form of the affidavit of Dr. [Fred] Webber, of such a potential new treatment.

Id. at 645.

The Second District permitted the Schindlers to present evidence to establish by a preponderance of the evidence that the judgment was no longer equitable and specifically held:

To meet this burden, they must establish that new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex-- significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo this treatment and would reverse the prior decision to withdraw life-prolonging procedures.

Id. The Second District required an additional set of medical examinations of Theresa and instructed that one of the physicians must be a new, independent physician selected either by the agreement of the parties or, if they could not agree, by the appointment of the guardianship court. See id. at 646.

After conducting a hearing for the purpose set forth in the Second District's decision, the guardianship court denied the Schindlers' motion for relief from judgment. See In re Guardianship of Schiavo, 851 So.2d 182, 183 (Fla. 2d DCA 2003) ( Schiavo IV ). In reviewing the trial court's order, the Second District explained that it was "not reviewing a final judgment in this appellate proceeding. The final judgment was entered several years ago and has already been affirmed by this court." Id. at 185-86. However, the Second District carefully examined the record:

Despite our decision that the appropriate standard of review is abuse of discretion, this court has closely examined all of the evidence in this record. We have repeatedly examined the videotapes, not merely watching short segments but carefully observing the tapes in their entirety. We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the guardianship court's decision de novo, we would still affirm it.

Id. at 186. Finally, the Second District concluded its fourth opinion in the Schiavo case with the following observation:

The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith.

But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband.... It may be unfortunate that when families cannot agree, the best forum we can offer for this private, personal decision is a public courtroom and the best decision- *328 maker we can provide is a judge with no prior knowledge of the ward, but the law currently provides no better solution that adequately protects the interests of promoting the value of life. We have previously affirmed the guardianship court's decision in this regard, and we now affirm the denial of a motion for relief from that judgment.

Id. at 186-87. We denied review, see In re Guardianship of Schiavo, 855 So.2d 621 (Fla.2003) , and Theresa's nutrition and hydration tube was removed on October 15, 2003.

On October 21, 2003, the Legislature enacted chapter 2003-418, the Governor signed the Act into law, and the Governor issued executive order No. 03-201 to stay the continued withholding of nutrition and hydration from Theresa. The nutrition and hydration tube was reinserted pursuant to the Governor's executive order.

On the same day, Michael Schiavo brought the action for declaratory judgment in the circuit court. Relying on undisputed facts and legal argument, the circuit court entered a final summary judgment on May 6, 2004, in favor of Michael Schiavo, finding the Act unconstitutional both on its face and as applied to Theresa. Specifically, the circuit court found that chapter 2003-418 was unconstitutional on its face as an unlawful delegation of legislative authority and as a violation of the right to privacy, and unconstitutional as applied because it allowed the Governor to encroach upon the judicial power and to retroactively abolish Theresa's vested right to privacy. [FN2]

FN2. Because we find the separation of powers issue to be dispositive in this case, we do not reach the other constitutional issues addressed by the circuit court.

ANALYSIS

We begin our discussion by emphasizing that our task in this case is to review the constitutionality of chapter 2003-418, not to reexamine the guardianship court's orders directing the removal of Theresa's nutrition and hydration tube, or to review the Second District's numerous decisions in the guardianship case. Although we recognize that the parties continue to dispute the findings made in the prior proceedings, these proceedings are relevant to our decision only to the extent that they occurred and resulted in a final judgment directing the withdrawal of life-prolonging procedures. [FN3]

FN3. The parties stipulated that the circuit court was authorized to take judicial notice of three orders of the guardianship court. The circuit court relied only on the existence of these orders in finding chapter 2003-418 unconstitutional as applied.

The language of chapter 2003-418 is clear. It states in full:

Section 1. (1) The Governor shall have the authority to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient if, as of October 15, 2003:

(a) That patient has no written advance directive;

(b) The court has found that patient to be in a persistent vegetative state;

(c) That patient has had nutrition and hydration withheld; and

(d) A member of that patient's family has challenged the withholding of nutrition and hydration.

(2) The Governor's authority to issue the stay expires 15 days after the effective date of this act, and the expiration of the authority does not impact the validity or the effect of any stay issued pursuant to this act. The Governor may lift the stay authorized under this act at *329 any time. A person may not be held civilly liable and is not subject to regulatory or disciplinary sanctions for taking any action to comply with a stay issued by the Governor pursuant to this act.

(3) Upon issuance of a stay, the chief judge of the circuit court shall appoint a guardian ad litem for the patient to make recommendations to the Governor and the court.

Section 2. This act shall take effect upon becoming a law.

Ch.2003-418, Laws of Fla. Thus, chapter 2003-418 allowed the Governor to issue a stay to prevent the withholding of nutrition and hydration from a patient under the circumstances provided for in subsections (1)(a)-(d). Under the fifteen-day sunset provision, the Governor's authority to issue the stay expired on November 5, 2003. See id. The Governor's authority to lift the stay continues indefinitely.

SEPARATION OF POWERS

[1] The cornerstone of American democracy known as separation of powers recognizes three separate branches of government--the executive, the legislative, and the judicial--each with its own powers and responsibilities. In Florida, the constitutional doctrine has been expressly codified in article II, section 3 of the Florida Constitution , which not only divides state government into three branches but also expressly prohibits one branch from exercising the powers of the other two branches:

Branches of Government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

"This Court ... has traditionally applied a strict separation of powers doctrine," State v. Cotton, 769 So.2d 345, 353 (Fla.2000) , and has explained that this doctrine "encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. The second is that no branch may delegate to another branch its constitutionally assigned power." Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 264 (Fla.1991) (citation omitted).

[2] The circuit court found that chapter 2003-418 violates both of these prohibitions, and we address each separately below. Our standard of review is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (stating that a trial court's ruling on a motion for summary judgment posing a pure question of law is subject to de novo review).

Encroachment on the Judicial Branch

We begin by addressing the argument that, as applied to Theresa Schiavo, the Act encroaches on the power and authority of the judicial branch. More than 140 years ago this Court explained the foundation of Florida's express separation of powers provision:

The framers of the Constitution of Florida, doubtless, had in mind the omnipotent power often exercised by the British Parliament, the exercise of judicial power by the Legislature in those States where there are no written Constitutions restraining them, when they wisely prohibited the exercise of such powers in our State.

That Convention was composed of men of the best legal minds in the country-- men of experience and skilled in the law--who had witnessed the breaking down by unrestrained legislation all the security of property derived from contract, the divesting of vested rights by doing away the force of the law as decided, the overturning of solemn decisions *330 of the Courts of the last resort, by, under the pretence of remedial acts, enacting for one or the other party litigants such provisions as would dictate to the judiciary their decision, and leaving everything which should be expounded by the judiciary to the variable and ever-changing mind of the popular branch of the Government.

Trustees Internal Improvement Fund v. Bailey, 10 Fla. 238, 250 (1863) . Similarly, the framers of the United States Constitution recognized the need to establish a judiciary independent of the legislative branch. Indeed, the desire to prevent Congress from using its power to interfere with the judgments of the courts was one of the primary motivations for the separation of powers established at this nation's founding:

This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution. The Convention made the critical decision to establish a judicial department independent of the Legislative Branch.... Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature ... in many instances decided rights which should have been left to judiciary controversy."

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221-22, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (citations omitted).

[3] Under the express separation of powers provision in our state constitution, "the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power," and "the legislature cannot, short of constitutional amendment, reallocate the balance of power expressly delineated in the constitution among the three coequal branches." Children A, B, C, D, E, & F, 589 So.2d at 268-69; see also Office of State Attorney v. Parrotino, 628 So.2d 1097, 1099 (Fla.1993) ( "[T]he legislature cannot take actions that would undermine the independence of Florida's judicial ... offices.").

[4] [5] As the United States Supreme Court has explained, the power of the judiciary is "not merely to rule on cases, but to decide them, subject to review only by superior courts" and "[h]aving achieved finality ... a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy."