March 18, 2005

 

 

March 18, 2005

UCN NO: 521990GA002908XXGDXX
REF. NO: 90-2908GD-003
Time 12:30 p.m. -12:45 p.m.
         1:15 p.m. Ė 1:40 p.m.

 

TELEPHONIC HEARING

P-R-O-C-E-E-D-I-N-G-S

 APPEARANCES

George J. Felos ,Esquire, and Debroh Bushnell,Esquire, attorneys for Michael Schiavo;  .David C. Gibbs,III,Esquire, attorney for Schindlers; Kerry Kircher, Esquire, Keith Ausbrook,Esquire, and Geraldine R. Gennet, Esquire, for U.S.House of Representatives; Marcia Davidson,Esquire, and Tara McDonald,Esquire, staff Attorneys for Judge Greer;Elaine New,Esquire, Court Counsel; Jeff Gibson, Esquire, Attorney for Dr. Tripodis

Mr. Stuart:   Is this Elaine?   Can anybody hear me?

MS. Davidson:   Hello.

MR. Stuart:   Judge Greer?   This is Ron Stuart,  can you hear  me?

MR. KIRCHER:  This s Kerry Kircher and Dave Gibbs and Keith Ausbrook  on  one line.

MR. FELOS: Excuse me.  This  is Attorney George Felos joining this conference call.

MS. BUSHNELL:  Hello George.

MR. FELOS:  Oh, hi, Debbie.  Who else is on?

MS. BUSHNELL:  David is here and Iíll let them introduce themselves.

MR. FELOS:   Okay.

MR. GIBBS:  There are two attorneys from the House of Representatives, George,  and Iíll let them speak and identify themselves.

MR. FELOS:   Okay.

MR. KIRCHER: The first one of us is Kerry Kircher, Iím the Houseís Deputy General Counsel.

MR. FELOS:   Uhóhuh.

MR. AUSBROOK:  Iím keith Ausbrook.   Iím the Chief Counsel for the House Committee for Government Reform.

MR. FELOS:   Okay.

MS. DAVIDSON:   Iím Marcia Davidson, staff attorney for Judge Greer.   I  donít believe Judge Greer is yet on the line.

MR. FELOS:   Okay.

MS. NEW:  Hello, this is Elaine New, the court counsel.Who else is already on the line?

MR. GIBBS: Iíll start here. Attorney David Gibbs. I represent Bob and Mary Schindler.

MR. KIRCHER: Iím in David Gibbsí office. My name is Kerry Kircher. Iím the Houseís Deputy General Counsel.

______

NOTE: Mr. Gibbs,in his book ďFighting  For Dear Life,Ē writes: ďI was in her room the day her feeding tube was removed Öas well as shortly before Terri took her final breath.Ē [pg 14]

______

MR. AUSBROOK: Iím Keith Ausbrook and Iím the Chief Counsel for the House Committee on Government Reform.

MR. FELOS: This is George Felos, attorney for Michael Schiavo.

MS. BUSHNELL: And Debbie Bushnell, attorney for Michael Schiavo.

MR. FELOS:  I just wanted to mention that attorney Jim Martin, who is the attorney for MeaseMorton Plant for whom Dr. Tripodis works also wanted to attend since his client was subpoenaed.  So we may want to wait just a moment and seeif he comes, joins the conference. 

MS. GENNET: This is Geraldine Gennet, the General Counsel for the House.   He called here.  He was sending a lawyer down to the courthouse to listen.

MR. FELOS:   Okay.

MS. GENNET:  And I didnít know that we had enough lines for him.

MS. NEW:  Is the Court reporter on the line yet?

THE COURT REPORTER:  Yes, maíam.

MR. PERELLI:  This is Tom Perelli,(phonetic) by the way,  as well.

THE COURT REPORTER:  I didnít get that, sir.  Could you repeat that, please?

MR. PERELLI: Tom Perelli, one of the counsel for Mr. Schiavo.

 JUDGE DEMERS:    This is David Demers.  Iím the Chief Judge of the Sixth Circuit. We,ve had some difficulty finding Judge Greer.  Judge Greer had made numbers available to us so that we can locate him and keep in touch with him when we had matters come up concerning this, but for some reason weíve not been able to locate him and weíre in the process of remedying that.

   Accordingly,  what Iím going to do, as Chief Judge, is direct that the feeding tube not be removed at one oíclock, but that everyoneremain on standby there until weíre able to reach Judge Greer, which we expect to do relatively soon.

   And weíre going to give Judge Greer an opportunity to consider these particular motions that had been filed.   Until that time,  the feeding tube will not be removed.

   Any questions about that?

MR. GIBBS: This is David Gibbs.  No, Your Honor, and we will just view that as a stay until Judge Greer has his hearing.

JUDGE DEMERS:  That will be today and that will be, we anticipate, very shortly   because we Ė apparently thereís a technical problem, I gonít know exactly what it is, but it wasimportant to Judge Greer that we be able to reach him and weíre in the process of doing that.

   So no one is to leave.Weíre going to conduct this hearing if we find Judge Greer.MS. NEW:  Mr. Gibbs,  would you  -- I believe youíre the one that set up the meet me number; is that correct?

MR. GIBBS: I did. That is correct.

MS. NEW:  Can you contact the AT&TOperayor and make sure that the line is still available and that we can continue to just remain on standby until we can reach Judge Greer?

MR. GIBBS:  I will proceed to do that. Again, I hope that nothing changes,  but we will keep this line and all of these codes, in fact, as long as AT&T will let us.

MR. FELOS:  Judge Demers?

JUDGE DEMERS: Yes, sir.

MR. FELOS: This is Attorney George Felos, how do you want to proceed?  Do you want us to call Ė to stay on the line until you find Judge Greer?  Do you want to temporarily adjourn this call and have us call back at a certain time or arrange to have someone contact us?

   How do you wish to proceed in that way?

JUDGE DEMERS:  I would like for you to call back in about 30 minutes.

MR. FELOS: So we will then call back for a tentative hearing at one oíclock.

JUDGE DEMERS: Well, actually, itís a quarter to one right now, so letís make it 1:15.

MR. FELOS: 1:15.

JUDGE DEMERS: And Ė

MS. NEW: Mr. Gibbs, Iím counting on you Ė

JUDGE DEMERS: Excuse me just a second. Let me make sure that everybody understands that whoever needs to contact the facility does so to make sure that the feeding tube is not removed at one oíclock.

 MS. BUSHNELL:  Judge Demers, this is Debra Bushnell.  Iam at the Hospice facility and I will make sure that theyíre informed.

JUDGE DEMERS:  Okay. So Iím going to turn this over to Ms. New./  Everybody should call back at 1:15.  I anticipate by then we will be able to proceed with the hearing.  Any questions?

MR. FELOS:  No, Your Honor.

MR. GIBBS: No, Your Honor.

MS. BUSHNELL: No.

MR. KIRCHER: No.

JUDGE DEMERS:  Very good.

(Thereupon, there was a 30 minute break.)

MS. DAVIDSON: Hello. This is Marcia Davidson.  Ihave the court reporter and the press with me. Who else is here?

JUDGE GREER: Hello?

MR. STUART:  Yes. This is Ron Stuart, the Court Public Information Officer.   We have various media present.

 JUDGE GREER:  Okay.  This is Judge Greer Would counsel who are going to participate in the hearing please identify themselves?

MR. GIBBS:  Your Honor, Judge Greer, this is David Gibbs.  As youíre aware, I represent Bob and Mary Schindler.

JUDGE GREER:  Yes, sir, Mr. Gibbs.

MR. GIBBS: Thank you.

MR. KIRCHER:  Your Honor,  this is Kerry Kircher. Iím the Deputy General Counsel of the U.S. House of Representatives.  I will be arguing the motion on behalf of the  Government Reform Committee.

 JUDGE GREER: Thank you, Mr. Kircher.

MR. KIRCHER:  And Iím also,  by the way, joined by Keith Ausbrook, who is Chief Committee Counsel.

JUDGE GREER:  Okay.  But Mr. Ausbrook is not going to be participating?

MR. AUSBROOK:  Not in the argument.

JUDGE GREER:   Thank you.   Is anyone here for the Guardian?

MR. FELOS:   Your Honor,  George Felos here.

JUDGE GREER:   Okay.

MR. PERELLI:  And Tom Perelli as well, Your Honor.

MS. BUSHNELL:  Debra Bushnell here.

MR. BASKIN:  Hamden Baskin here.

JUDGE GREER:  Okay,  Mr. Kircher,  this is your motion to intervene, sir.

MR. KIRCHER:   Okay.  Do we have the court reporter,  Your Honor?   A minute ago we didnít.

THE COURT REPORTER:   Yes, Iím here.

JUDGE GREER:   Okay.

MR. KIRCHER:  Shall I proceed?

JUDGE GREER:  Yes, sir, please.

MR. KIRCHER:  Your Honor,   let me start by thanking you for taking the time to conduct this argument.  As I mentioned,  my name is Kerry Kircher.  Iím the Deputy General Counsel for the House of Representatives.

   Iím appearing today on behalf of the Committee on Government Reform of the House. You have before you two motions that we have filed today.

   The first is a Motion to Intervene for a very limited purpose and the second is a  Motion to Modify on a temporary basis the Courtís February 25th order,  which had set a time today for the removal of Theresa Schiavoís feeding tube.

   The purpose of the two motions is very  basic, Your Honor, itís to prevent the Courtís February 25th order from having the effect of interfering  with a legitimate congressional inquiry which would occur if the five recipients of the Committeeís subpoenas  which were issued and served,  four of which were served today,  we understand Dr. Gambone is out of town and has not been served,  but the other four recipients were served.

   The interference would occur if any one of those recipients withdrew Theresa Schiavoís nutrition and hydration.

JUDGE GREER:    Well, letís go to your --  the interest of your Committee in this litigation.

MR. KIRCHER:    The interest of the Committee in the litigation,  Your Honor, is basically what I just stated,  which is to prevent the February 25th  order from having the effect of seriously interfering with the sffect of those subpoenas.

   The reason why that order would have that effect is because the Committee has scheduled a field hearing at the Hospice on March 25th  at 10 p.m.   Itís issued five subpoenas,  one to Theresa herself and four to the Ė Michael Schiavo and the three doctors and director of the Hospice   basically directing them to produce at the field hearing at the Hospice itself, and Iím quoting now from the subpoenas that were served,  all medical and other equipment that provides nutrition and hydration to Theresa Schiavo in its current and continuing state of operations and all data, information and records relating to the function of such medical and other equipment subject only to such routine and necessary maintenance as is necessary to ensure its continued proper functioning to provide such nutrition and hydration to Theresa Schiavo.

JUDGE GREER:  But whatís that got to do with this litigation?

 MR. KIRCHER:  It has to do with this litigation,  Your Honor, in the sense that if the order is not temporarily stayed for a period of nine days,  which is what we have asked for to permit the field hearing to go ahead and to permit these parties to comply with the subpoenas, will have the effect of interfering with a federal congressional investigation.

THE COURT:  Okay.  But I still donít  understand what the investigation has got to do with this litigation.  Youíre seeking authorization to intervene and you simply say we decided to issue subpoenas, so weíre entitled to be in the lawsuit.  The nexus escapes me, Counselor.

MR. KIRCHER:  Okay.  The nexus is that Congress is conducting an investigation. Iím perfectly prepared to go through and explain why itís a legitimate investigation, itís well within the jurisdiction of this Committee, which has the broadest investigative authority of any committee in the House of Representatives.

It concerns health care, which is a matter that is clearly subject to the legislative jurisdiction of the Congress of the United States.  And Ė

JUDGE GREER:  How many other  --  how many other field trips are scheduled for people on feeding tubes?

MR. KIRCHER:  At this time?

JUDGE GREER:  Yes Sir.

MR. KIRCHER:  Iím not aware that there are any others at this time.

JUDGE GREER:  Okay.

MR. KIRCHER:  I want you to understand, Your Honor, that weíre not seeking to vacate the order or anything like that.  All weíre asking for is a temporary postponement of the effect of that order to permit the subpoenas to take effect and to permit the Committee to conduct its field hearing on March 25th at the Hospice in an orderly fashion.

If the feeding tube is removed, that will not be possible.  That is the nexus to the litigation.  Thatís the only nexus to the litigation.

JUDGE GREER:  Okay.  Mr. Gibbs?

MR. GIBBS:  Yes, Your Honor.  As youíre aware, we represent Bob and Mary Schindler.  And on behalf of the family we would join with what has been put forward by the Counsel for the House f Representatives.

Your Honor, we see no harm whatsoever in allowing the Congress to fulfil its constitutional authority in investigating this matter. And we believe that it would be in the best interest of Terri and we would strongly encourage this Court to consider the merits of this.         

It does raise, and I would not be fully cognizant of all of the issues,  but I think some significant federalism issues.  The Congress would have the authority to investigate this matter.

And I think allowing a very short term, very limited stay for this investigation, this field work, to be done is completely within the discretion of this court.

This Court, as Schiavo II reminds us, retains a continuing jurisdiction over the final order and we would ask the Court to please consider what the House of Representatives through counsel has requested.

THE COURT:  Thank you, Mr. Gibbs.  Mr. Felos.

MR. FELOS:  Thank you, Your Honor. Your Honor, I believe that the Court should reach the merits of the Motion to Stay for this reason:  That the Ė among the persons being threatened and coerced by those subpoenas, I think it would be helpful for the orderly process here to have the Court look at the Motion to Stay on the merits and deny it.

Your Honor, I think it is appartent to Ė it is fully apparent that what we have here is no legitimate Committee investigation,  but strictly a political play to deny Mrs. Schiavo her constitutional Ė her constitutional rights.

I would note that in the Committeeís motion itself it states, It has long been recognized that the Constitution implicitly grants both the House of Representatives and the Senate broad authority to subpoena documents and testimony in furtherance of their legislative responsibilities.

Thereís absolutely no citation of law that says that a committee or subcommittee of the Congress of the United States of America has the ability to force an American to have medical treatment against their wishes and make medical treatment choices for a patient.

I also wanted to cite to the Court House Rules of Section II Ė or Article 11 Section 2M which says that, A House Committee may subpoena only, and IíM quoting,  the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers and documents as it considers necessary end quote.  There is nothing in the House Rules itself that permits the issuance of these subpoenas, Your Honor.

Not only that, the House of Representatives has no right by subpoena to interfere with the federal constitutional rights of Americans and I might add that the --  although Mrs. Schiavoís right to refuse medical treatment was adjudicated under the Florida Constitution,  under the United States Cruzan case, the United States Supreme Court has stated that each American has a liberty interest under the federal constitution to be free of unwanted medical treatment.

There is absolutely no citation or authority to support what is, in effect, an injunction, an injunction being issued by a House Committee, which this subpoena is,  It enjoins certain conduct.   It does not require attendance of records or attendance of a person, Your Honor.

I also wanted to ask this Court in its order in ruling on the merits of the Motion to Stay to specifically find that the subpoenas are improper.  And to the extent that they enjoin certain conduct that they should Ė that they should be quashed, Your Honor, which the Court,  of course, has the authority to do with the House Committee having submitted itself to the jurisdiction of this Court by making a request for a stay.

So, in this Courtís order denying the stay, we would request a finding that the subpoenas are improper to the extent that they would Ė improper to the extent that they would require medical treatment be provided to Mrs. Schiavo, Your Honor.

I would also ask that in your  order, in your ruling today, you specifically instruct House Counsel having ruled the subpoenas invalid for this purpose to instruct their client to instruct marshals not to interfere with this Courtís judgment having Ė with this Court having the stay denied.

I have heard Ė I have heard reports. I cannot represent this as a fact, Your Honor, but I have heard reports that the Congress has requested local marshals to  prevent removal of the feeding tube.

Since the representatives of Congress have come before this Court and submitted themselves to the jurisdiction of this Court,  this Court is well within its authority to  -- in denying their Motion for Stay and finding the subpoenas insufficient for that purpose to order them Ė order Congress not to have federal marshals Ė federal marshals interfere.

Your Honor, in closing, I just wanted to point out by analogy, if this subpoena were deemed to be valid, then any committee member or any committee of a House of Representatives could issue a subpoena preventing the removal of life support or a subpoena forcing medical treatment on any citizen in the United States.

If thereís a patient in Washington DC now who has a respirator and that family has chosen and that patient has chosen to remove a respirator under grand sunpoena authority alleged here,  the House of Representatives could simply issue a subpoena saying, weíre investigating respirators and, therefore, weíre going to sunpoena you and the respirator and donít tamper with it.

If that raw abuse of power is upheld, Your Honor, then unfortunately we would have to say that this country Ė this countryís government is analogous to that of a totalitarian state which contends that it owns the body of its citizens.

The United States Congress and the Committees of the United States Congress do not own the body of Theresa Schiavo.   They have absolutely no legal authority to compel her medical treatment against her will and the full adjudication of her rights.

And so I think the Motion for Stay should be reached by the Court, it should be specifically denied with the findings that I have suggested, Your Honor.

JUDGE GREER:  Thank you, M. Felos.  Mr. Kircher, rebuttal?

MR. KIRCHER:  Thatís a lot, Your Honor. Let me try to take these one by one here, if I may.  On the notion that the Committee on Government Reform of the House of Representatives has requested federal marskals to prevent the removal of the feeding tube, that simply is not true.  I  donít know where itís coming from.  It has nothing to do with my client.  So that has no place in this.

Number two, on the notion that this Court has the authority to squash congressional subpoenas,  you simply do not have that authority,  Your Honor.

JUDGE GREER:  Iím not going to argue Ė Counselor,  Iím not going to argue that with you.

MR. KIRCHER:  Yeah. I mean, that would violate the speech or debate clause of the Constitution.  So that authority simply does not exist here.

The notion that this sunpoena is illegitimate is simply not the case.  If you will read the rules of the House, Your Honor, which weíve attached to the pleading and the Rules of the Committee, you will see that the Committee on Government Reform has terribly broad investigative authority.

The point that Mr. Felos made about the documents, that is a matter that is reserved for the discretion of the House to interpret it own rules.   This issue was raised and discussed with the parliamentarian before the subpoenas were issued and that is, again, is a matter that the Court simply cannot get into as to how the House interprets its own rules.

The subpoena does, in fact, request and direct the production of records.  It does, in fact, direct the appearance and testimony of the witnesses in addition to the other things that I described earlier.  So itís a perfectly valid and legitimate subpoena, Your Honor.  And once that is established, the Court simply doesnít have the authority to go back behind it and question whether it was wise to issue the subpoena.

Thereís one case I would like to give you, Your Honor, and Iíll give you a citation.  It was not in the pleadings, and I apologize for that, but it stands for the proposition that you cannot look behind the subpoena if itís valid on its face, as it clearly is here.

The case is Pavoulareas, P-A-V-O-L-A-R-E-A-S versus Piro, P-I-R-O. The cite is 93 Federal Rules Decision II. And the pertinent language is on Pages 18 and 19.  Itís a BC [DC] District Court, 1981.

So, for basically all those reasons, Your Honor, the arguments that Mr. Felos made are simply unavailing.  He has misconstrued the nature of these subpoenas. The purpose of this proceeding,  the purpose of our being here is simply to get a short-term temporary modification of the order so that Congress can carry through on a subpoena and a field hearing that is quite clearly within the bounds of its discretion and authority to carry out.

So, for those reasons,  Iurge you to grant the motion.

JUDGE GREER:  Thank you.

MR. FELOS:  Your Honor,  may I briefly respond?

JUDGE GREER:   No.  No.  No.  No.  He gets the last word, Mr. Felos.   We could go on indefinitely.

MR. FELOS: Okay.

JUDGE GREER: Clearly these subpoenas are unusual,  to say the very least.  But before we get there, we need to address the Motion to Intervene because if the House Select Committee is unable to intervene,  it has no standing to advance the other motion.

Iíve heard no cogent reason why the Committee should be able to intervene.   This is a case involving a personís decision whether or not to remain on life support.

And while youíre only asking for nine days, Counselor, I  must remind you that the order you want me to modify is over five years old.   So thereís been lots of time,  if Congress wished to investigate, they certainly could have done that.

I denied the Department of Children and Families the right to intervene.  I donít think legislative agencies or bodies have a business in a court proceeding.

And, accordingly, Iím going to deny your Motion to Intervene.  Your Motion for Stay you do not have standing and for that reason it will also Ė well, the Motion to Modify will be denied.

Having done so, to  whatever extent Judge Demers did anything with my order of February 25, 2005,  that order is to be reinstated and Iím directing it to be complied with and carried out forthwith.

MR. KIRCHER:  Your Honor Ė

JUDGE GREER:  Mr. Felos Ė

MR. KIRCHER:  Your Honor Ė

JUDGE GREER:  Yes,  Sir.

MR. KIRCHER:  This is Kerry Kircher again.  Your Honor,  we have prepared Emergency Motions for Appeal to the Second DCA and the Florida Supreme Court.  I  respectfully request, Your Honor,  that you stay the effect of your order today Ė

JUDGE GREER:  Mr. Kircher, Iím not going to give you indirectly what Iím not going to give you directly, sir, Iím sorry.

MR. KIRCHER:  Iím simply seeking a short-term stay for two or three days to give us an opportunity to take an appeal on these important federal issues,  Your Honor.

JUDGE GREER:  Mr. Kircher, these issues have been important federal for five years. And the fact that you choose Ė your Committee chooses to do something today doesnít create an emergency, sir.  Iím sorry.

My order will stand.   Mr.  Felos, if you will kindly prepare an order and submit it to counsel and then submit it to the Court,

MR. FELOS:  Yes, Your Honor.   If Ė and I gather I have for the Ė for the House, Mr. Kircher,  is it all right if I circulate that order to you and is your Ė is it your address thatís on the motion?

MR. KIRCHER:  Yes,  you can circulate it to the 210 Cannon address.   It should probably be faxed up there.

JUDGE GREER:  Yeah.   Letís do this by fax.

MR. KIRCHER:  Itís area code 202-226-1360.

MR. FELOS:  1360, OKAY.  Yes, sir.

JUDGE GREER:   Okay.  Thank you all very much.

MS. BUSHNELL: Your Honor,  if I might. This is Debbie Bushnell.  Iím at the Hospice facility and itís my understanding that your order is effective immediately;  is  that  correct?

JUDGE GREER:  The word was forthwith.

MS. BUSHNELL:  Okay.  Whether or not itís in writing.

MR. FELOS:  That it be carried out forthwith.

JUDGE GREER:  Yes.   I have ordered that and Iím within my jurisdiction and itís as good as signed, I would think.

MS. BUSHNELL:  Thank you, Judge.

MR. FELOS:  Thank you, Your Honor.

JUDGE GREER:  Yes, maíam.  Yes, sir.

MR. KIRCHER:  Thank you, Your Honor.

JUDGR GREER:  Goodbye all.

MS. BUSHNELL:  Goodbye.

(Thereupon, the hearing was concluded.)