IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

CIRCUIT CIVIL

 

 

MICHAEL SCHIAVO, as Guardian of

the Person of THERESA MARIE SCHIAVO,

 

                                    Petitioner,

 

vs.                                                                                            CASE NO. 03-008212-CI-20

 

 

JEB BUSH, Governor of the State of Florida,

and CHARLIE CRIST, Attorney General

of the State of Florida,

 

                                    Respondents.

                                                                                    /

 

RESPONDENT’S MOTION TO EXPEDITE DISCOVERY RESPONSES

AND MOTION TO CONTINUE HEARING ON PETITIONER’S

MOTION FOR SUMMARY JUDGMENT

 

Respondent, Jeb Bush, Governor of the State of Florida, by and through undersigned counsel, hereby files this Motion to Expedite Discovery Responses and Motion to Continue Hearing on Petitioner’s Motion for Summary Judgment, and states as follows:

1.         On October 21, 2003, Petitioner filed his Petition for Declaratory Judgment and Request for Temporary Injunction (“Petition”) in the Circuit Court of the Sixth Judicial Circuit, Pinellas County.  Petitioner filed the instant action for declaratory relief for the purpose of challenging the constitutionality of Chapter 2003-418, Laws of Florida, which Petitioner asserts is unconstitutional on its face and as applied in the instant case. 

2.         On November 24, 2003, Petitioner filed his Motion for Summary Judgment, unilaterally scheduling a hearing on same for December 19, 2003.

            3.         On November 20, 2003 and November 21, 2003, counsel for the Governor notified Petitioner that the Governor wished to take the depositions of Michael Schiavo, Jodi Centonze, Scott Schiavo, Joan Schiavo, Peter Bambakidis, M.D., Ronald Cranford, M.D., and Melvin Greer, M.D.

4.         On November 21, 2003, Petitioner’s counsel responded that he would object to the taking of any of the depositions and advised of his intent to file a motion for protective order. 

5.         On November 24, 2003, the Governor filed a Notice of Intent to Take Depositions, formally advising the court and counsel of his intention, and on November 25, 2003, Petitioner filed a Motion for Protective Order seeking to preclude the Governor from taking the depositions.

6.         On December 1, 2003, the Governor propounded a First Request for Production and a First Set of Interrogatories on Petitioner.  In addition, the Governor filed a Notice of Production from Non-Party indicating the Governor’s intent to subpoena certain records from the Hospice of the Florida Suncoast.

7.         The Motion for Protective Order was granted by the court at the December 2, 2003 Case Management Conference.

8.         By granting the motion for protective order, the court has precluded the Governor from conducting depositions to demonstrate disputed issues of material fact, a prerequisite to preserving his rights at the upcoming December 19, 2003 hearing on Petitioner’s Motion for Summary Judgment.

9.         The Governor has contended in his filings to date in this court and in the Second District Court of Appeals, that he has been denied due process and foreclosed from developing the evidence necessary to defend in this action.  In order to properly defend against the allegations in the Petition, the Governor must be given the opportunity to discover evidence, prepare an argument, and obtain a fair and impartial jury trial of disputed facts. 

10.       Rather than affording the Governor the opportunities, this court has attempted to shortcut the proceedings by requiring the parties to submit “briefs on the issues” and stating that only after such a review would the court consider whether an evidentiary hearing would be necessary.  

11.       Judging by Petitioner’s Brief submitted on October 30, 2003, he apparently intends to rely upon hearsay “facts” and legal conclusions gleaned from other legal proceedings in which the Governor was neither a party nor a participant.  These borrowed assertions of fact are improper hearsay.  Mere naked allegations of fact are insufficient to support an “as applied” constitutional challenge.  In Cox v. Fla. Dept. of Health and Rehabilitative Services, 656 So. 2d 902 (Fla. 1995), the Florida Supreme Court held that even in a case where the parties waived an evidentiary hearing and allowed the case to proceed to resolution with the parties simply submitting briefs, the record was insufficient to determine whether a statute could be sustained against a constitutional attack. 

12.       The Governor has not yet been given the opportunity to take any discovery in this matter.  Unless the Governor waives his rights, he is entitled to discovery and to participate fully in the presentation of evidence.  See, Bush v. Holmes, 767 So. 2d 668, 677 (Fla. 1st DCA, 2000) (“…the question of the constitutionality of a statute is an issue of law, or of mixed fact and law, depending on the nature of the statute brought into question and the scope of its threatened operation as against the party attacking the statute.”); Cox .v Florida Dept. of Health and Rehabilitative Services, supra.;  See also, Glendale Federal Savings & Loan v. Dept. of Insurance, 485 So. 2d 1321 (Fla. 1st DCA 1986) (constitutionality of a statute is a mixed question of law and fact).  

13.       It also appears from the Court’s recent orders that the Court is inclined to resolve the issues in the Petition without permitting the Respondent to engage in any discovery and without affording him the right to a jury trial or evidentiary hearing to resolve issues of fact.  If the Court decides to proceed in this fashion summarily, the Governor has suggested that such action would be error.  The Governor’s concerns about the lack of due process which have permeated the proceedings to date are further exacerbated by the Court’s order dated November 4, 2003, wherein the Court, in denying the Schindler’s Motion to Intervene, opined that,

 “there are no significant factual issues that might be impacted by their presence as a party.  It is anticipated that, other than the pleadings filed by the current parties, legal argument in written brief form will be the sole basis on which the Court will determine the constitutionality of the Act.” (emphasis added).

 

14.       As in the case of any other litigant, the Governor has both procedural and substantive rights.  These rights include the right to discovery to cross examine witnesses and the right to a jury trial or an evidentiary hearing with respect to factual matters.  (See, e.g., Art. 1, §22, Fla. Constitution and Rules 1.430 and 1.280, Fla. R. Civ. P.)  The Governor has also suggested that there is nothing about the instant case that warrants a summary disposition of the Governor’s rights. 

15.       It is axiomatic that the facts of a case must be sufficiently developed in order for a court to be reasonably certain that no genuine issue of material fact exists. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1995).  Thus, “[a]s a general rule, a court should not enter summary judgment when the opposing party has not yet completed discovery.” Brandauer v. Publix Super Markets, Inc, 657 So. 2d 932, 933 (Fla. 2d DCA 1995); Colby v. Ellis, 562 So.2d 356 (Fla. 2d DCA 1990) (general rule is that it is premature to grant motion for summary judgment when the opponent has not completed discovery and discovery motions are pending before the court), citing Singer v. Star, 510 S.2d 637 (Fla. 4th DCA 1987); A&B Pipe and Supply Co., v. Turnberry Towers Corp., 500 So.2d 261 (Fla. 3d DCA 1986); De Rosa v. Shands Teaching Hospital and Clinic, Inc. 468 So.2d 415 (Fla. 1st DCA 1985).

16.       The Governor has been denied the opportunity to take depositions to develop his factual record, and the Governor’s counsel is in the process of preparing a Petition for Writ of Certiorari to ask the appellate court to review the trial court’s decision in that regard.

17.       In addition, the Governor has propounded discovery requests and requests for admissions intended to assist in filling the factual void in this case.  However, these responses will not be due from the Petitioner until after the December 19, 2003 hearing on the motion for summary judgment.

18.       As described herein and in the attached Affidavit of Camille Godwin (Exhibit “1”), the contents of which are incorporated herein by reference, the Governor has been frustrated in his efforts at obtaining the discovery required to defend against the motion for summary judgment and he will be unduly and unfairly prejudiced if she is not permitted to develop the testimony and evidence to rebut the allegations of the motion for summary judgment.

            19.       In compliance with Florida Rule of Civil Procedure 1.510(f), Respondent has attached hereto the affidavit of his counsel attesting to the facts described above and the reason for Respondent’s request for continuance of the hearing on Petitioner’s Motion for Summary Judgment.

            20.       In addition, Kenneth L. Connor, lead counsel for the Governor in this matter is currently in trial in Greenwood, Mississippi in a matter not expected to end until December 20, 2003.  If the summary judgment motion remains as scheduled, the Governor will be unfairly prejudiced by not having the opportunity for his lead counsel to represent his interests at a critical hearing.

            21.       Until such time as the requested discovery is completed and the Governor’s lead counsel is available, any hearing on Petitioner’s Motion for Summary Judgment is premature, inappropriate, and will result in undue prejudice to the Governor.

            22.       If the court is inclined to hear the motion as scheduled or to re-schedule the hearing, Respondent requests the court also enter an order expediting the time within which Petitioner is required to respond to the outstanding discovery and request for admissions.

WHEREFORE, Respondent respectfully requests this court grant this Motion to Expedite Discovery and Motion for Continuance of Hearing on Petitioner’s Motion for Summary Judgment until such time as appropriate discovery may be conducted, discovery disputes resolved, and Respondent’s counsel available to represent his interests at such hearing.

 

 

Respectfully submitted,

 

Counsel for Respondent Governor Jeb Bush

 

                                                                                                                                                                                                           

                                                            KENNETH L. CONNOR

                                                                        Florida Bar No. 146298