IN THE DISTRICT COURT OF APPEAL

IN AND FOR THE SECOND DISTRICT

STATE OF FLORIDA

 

JEB BUSH,

Governor of the State of Florida,

CASE NO.:

L.T. Case No.: 03-008212-CI-20

 

Appellant,

 

v.

MICHAEL SCHIAVO, as Guardian of

the Person of THERESA MARIE SCHIAVO,

Appellee.

/

 

EMERGENCY MOTION FOR STAY OF PROCEEDINGS PENDING

DISPOSITION OF APPEAL OF NON-FINAL ORDER DISMISSING

APPELLANT’S MOTION TO DISMISS PETITION FOR A

DECLARATORY JUDGMENT AND REQUEST FOR TEMPORARY

INJUNCTION AND SUGGESTION OF CONTEMPLATED ERROR

 

Appellant, JEB BUSH, GOVERNOR OF THE STATE OF

FLORIDA, by and through undersigned counsel, hereby moves this Court,

pursuant to Rules 9.300 (a) and 9.310 (f) of the Florida Rules of Appellate

Procedure, to stay further proceedings in the lower court of this cause pending disposition of Appellant’s interlocutory appeal of that Non-Final Order Dismissing Respondent’s Motion To Dismiss Petition For A Declaratory Judgment And Request For Temporary Injunction And Suggestion Of Contemplated Error dated November 7, 2003, (the “Order”), a copy of which is attached as Exhibit “1,” and as grounds therefore, Appellant states as follows

 

1. On October 21, 2003, Appellee filed his Petition for Declaratory

Judgment and Request for Temporary Injunction (“Petition”) in the Circuit

Court of the Sixth Judicial Circuit, Pinellas County. Notwithstanding the

filing of the Petition, Appellee has not effected service of process on

Appellant, the Governor of the State of Florida.

 

2. On November 4, 2003, Appellant moved to dismiss the Petition

on the grounds that (i) there is a lack of service of process and the Court

therefore lacks personal jurisdiction over this Appellant; (ii) the Petition fails

to state a cause of action for declaratory judgment and fails to comply with

the requirements of Rules 1.110 (b), 1.140(c), 1.510, and 1.610, of the Florida Rules of Civil Procedure.; (iii) the Petition relies upon legal conclusions and “borrowed facts” gleaned from legal proceedings to which Appellant was neither a party nor a participant and thus had no opportunity to cross examine witnesses; (iv) the request for temporary injunctive relief is moot; and (v) venue has been improperly laid in Pinellas County.

 

3. Although a hearing had been requested by Appellant, on

November 7, 2003, the lower court, without hearing, entered the Order, in

which the court found that the Governor’s counsel’s telephonic appearance at the temporary injunction hearing on October 21, 2003, constituted a general appearance for purposes of personal jurisdiction. The Order failed to take note that objections to the procedural process, including failure of service, were raised by counsel at the hearing, and that the Governor’s counsel did not seek affirmative relief at the hearing.

 

4. Appellant is aware of no case existing in Florida law which supports the proposition that appearance at a telephonic hearing wherein the party appears but requests no affirmative relief waives the right to assert lack

of personal jurisdiction.

 

5. In the Order, the court also found that the “sword wielder doctrine” applied to divest the Governor of his right to maintain venue of this

cause in Leon County.

 

6. On November 10, 2003, pursuant to Rules 9.130(a)(3)(A) and

9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure, Appellant filed a Notice of Appeal of the Order, contesting the lower court’s findings

regarding personal jurisdiction and venue. A copy of the Notice of Appeal is

attached as Exhibit “2.”

 

7. On that same date, Appellant also filed a Notice of Automatic

Stay advising the trial court and all interested parties that an automatic stay is in effect, pursuant to Rule 9.310(b) of the Florida Rules of Appellate

Procedure, (Exhibit “3”).

 

8. The trial court acknowledged that the case was automatically

stayed pursuant to Rule 9.310 of the Florida Rules of Appellate Procedure.

 

9. On November 12, 2003, the Appellee filed a Motion to Vacate

Stay.

 

10. The court set a hearing on this motion for 10:00am on Friday,

November 14, 2003.

 

11. Prior to hearing argument, the lower court had already prepared

an extensive written comment which he read during the hearing. The lower

court granted the motion to vacate the automatic stay.

 

12. The court did not consider evidence at the hearing, as none was

offered by Appellee. Appellee failed to introduce competent evidence

showing compelling circumstances to justify the trial court’s vacation of the

stay. The Order Granting Petitoner’s Motion to Vacate Stay had not yet been

prepared as of the time of filing of the instant motion.

 

13. No compelling circumstances exist to justify vacating the automatic stay. Rule 9.310(b)(2) provides as follows, in pertinent part: Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the state, any

public officer in an official capacity, board, commission, or other public body seeks review…On motion, the lower tribunal or the court may extend a

stay, impose any lawful conditions, or vacate the stay. Respondent’s appeal of this court’s Order denying Respondent’s motion to dismiss is an appeal of right under Rules 9.130(a)(3)(A) and 9.130(a)(3)(C)(i). Because the appeal is not discretionary, the automatic stay provisions apply.

 

14. Although the Appellee had the right to seek relief from the stay,

the decisional authorities have limited stay relief to circumstances where the

movant has introduced, at an evidentiary hearing held for such purposes,

competent evidence of compelling circumstances warranting such an action.

State v. Pringle, 707 So. 2d 387 (Fla. 1st DCA 1998), a copy is attached

hereto as Exhibit 4 for the convenience of this Court.

 

15. As the Fourth District explained in St. Lucie County v. North

Palm Development Corp., 444 So. 2d 1133 (Fla. 4th DCA 1984), the

justification for the automatic stay “involves the fact that planning-level

decisions are made in the public interest and should be accorded a

commensurate degree of deference and that any adverse consequences

realized from proceeding under an erroneous judgment harm the public

generally.” Id. at 1134-1135. A copy of this opinion is also attached as

Exhibit 5.

 

16. Courts have interpreted the term “compelling circumstances” in

a variety of contexts to mean a substantial or extreme hardship. See, Phillips v. General American Life Insurance Co., 652 So. 2d 1144, 1145 (Ala. 1994) (compelling circumstances means extreme hardship or injustice); American National Bank and Trust Co. v. International Seafoods Inc., 735 So. 2d 747, 754 (Ala. 1987) (compelling circumstances means more than mere hardship); Herbert v. Smith, 230 A.2d 235 (Conn. 1967) (compelling circumstances means substantial, irreparable injury, actual serious hardship); Fantle v. Fantle, 782 A.2d 377 (Md. App. 2001) (compelling circumstances means extreme hardship); Kiamesha Concord Inc. v. Greenman, 29 A.D.2d 904, 287 N.Y.S.2d 972 (N.Y. App. 1968) (compelling circumstances means great hardship); Klagues v. Maintenance Engineering Inc., 643 N.W.2d 45 (N.D. 2002) (compelling circumstances means extraordinary circumstances, unusual hardship); Appeal of Riccardi, 142 A.2d 289, 291 (Penn. 1958) (compelling circumstances means substantial hardship); Summa Corp. v. Lancer Industries, 559 P.2d 544, 546 (Utah 1977) (compelling circumstances means great hardship).

 

17. Appellee carries the heavy burden of proof to demonstrate

compelling circumstances to justify vacating an automatic stay. Pringle at

390; See also, Holmes v. Bush, 2000 WL 527694 (Fla. Cir. Ct. May 2, 2000). Appellee utterly failed to carry this burden, such that the trial court abused its discretion in vacating the stay.

 

18. As the lower court had already determined in its October 22,

2003, Order that “[n]o emergency exists that would require immediate

issuance of the requested relief,” no prejudice can possibly inure to the

Appellee if this court enters an order staying the instant proceedings pending

disposition of the issues raised by Appellants in this appeal.

 

19. Furthermore, a decision not to terminate the withdrawal of

sustenance results merely in maintenance of the status quo, even if such

decision is later determined to be erroneous. In such a case,

“…the possibility of subsequent developments such as

advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life sustaining treatment at

least create the potential that a wrong decision will be mitigated. An erroneous decision to withdraw lifesustaining treatment, however is not subject to correction. (Emphasis added). Cruzan v. Director, Missouri Dept. of Public Health, 497 U.S.261, 283 (1990).

 

20. Finally, in the underlying guardianship case pending before the

Honorable Judge George W. Greer in the Sixth Circuit in and for Pinellas

County, the court recently announced that it will entertain proceedings to

dismiss Michael Schiavo as guardian of Terri Schiavo. Certainly, the

resolution of that issue will have implications as to the standing of Michael

Schiavo to continue to prosecute the underlying Petition for declaratory and

injunctive relief.

 

21. This case involves fundamental constitutional rights and issues,

and judgment on such matters should never be rushed. In the recent case of

Department of Children and Families v. L.D., et al, 840 So.2d 432 (Fla. 5th

DCA 2003), the appellate court considered the appropriateness of the trial

court’s stay of a termination of parental rights in order to give the parents an

additional opportunity to satisfy case plan requirements. In upholding the

trial court’s stay, the Fifth District stated: “Finally, we note that parental rights implicate fundamental liberty interests, and the Department must

establish that termination of parental rights is the least restrictive means available to protect the children from harm. In re K.C.C., 750 So.2d 38, 40 (Fla. 2d DCA 1999); see also Department of Health and Rehabilitative Servs. v. M.B., 701 So.2d 1155, 1163 n. 13 (Fla. 1977). This is a decision that no court should take lightly or rush through. See Beveridge v. Mardis, 682 So.2d 1142, 1143 (Fla. 2d DCA 1996) ("[T]he court should vigilantly adhere to all statutory and procedural requirements before taking the

drastic final step of terminating ... parental rights."). We do not believe that the trial court abused its discretion in staying the hearing, considering additional evidence, and taking additional time to "get it right." (Emphasis added.)

 

22. The Governor recognizes that the lower court is under tremendous pressure to make a rapid determination of the issues raised in the

Petition. As the lower court has already determined that no emergency

situation exists, there is no logical reason to allow this pressure to create an

unnecessary rush to judgment on the court’s part, especially on issues of life

and death and fundamental due process as are now before the courts.

 

23. A rush to judgment would not serve the interests of Terri Schiavo, for whom this case was purportedly filed. Nor would it serve the interests of the people of the State of Florida, whose elected representatives overwhelmingly passed the subject law. The questions facing the court are

extremely weighty and fair resolution requires the court act cautiously and

deliberately to be sure we “get it right.”

 

24. After granting the Motion to Vacate Stay, the lower court ordered briefing on the issues raised by the Petition to be submitted by close

of business on Monday, November 17, 2003. Recognizing the extreme time

pressure that these requirements place on the parties and upon this Court,

Appellant also seeks an emergency stay of this matter for the time necessary

to enable this Court to have a fair opportunity to review this Motion for Stay

and to seek a response from the Appellant.

 

WHEREFORE, Appellant respectfully requests this court to enter an

Order staying further proceedings in the lower tribunal of this cause in this

court until disposition of Appellant’s Appeal of Non-Final Order Dismissing

Appellant’s Motion To Dismiss Petition For A Declaratory Judgment And

Request For Temporary Injunction And Suggestion Of Contemplated Error,

and further requests an emergency stay to enable the Court to consider the

merits of this Motion to Stay and solicit response from the Appellant.

 

Respectfully submitted,

Counsel for Appellant Governor Jeb Bush

 

KENNETH L. CONNOR

Florida Bar No. 146298

Tampa, Florida 33606