Opposition Brief — Moore v. Regents of the University of California

Supreme Court, U.S.

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MAR 1 (199)

No. 90-1037

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In The

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Supreme Court of the United States

October Term, 1990

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JOHN MOORE,

Petitioner,

VS.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

DAVID W. GOLDE, M.D., SHIRLEY G. QUAN,

Respondents.

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Petition For Writ Of Certiorari To The

Supreme Court Of California

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RESPONDENT SHIRLEY G. QUAN’S

BRIEF IN OPPOSITION

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Horvitz & Levy

Peter ABRAHAMS*

GERALD SERLIN

15760 Ventura Boulevard, 18th Floor

Encino, California 91436

(818) 995-0800 and (213) 872-0802

Counsel for Respondent

Shirley G. Quan

*Counsel of Record

March 1, 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether, on a petition for writ of certiorari to the

Supreme Court of California, this Court has jurisdiction

to address a claim that the petitioner’s bodily tissue is

property that was taken by the state without just compen-

sation in violation of the Fifth Amendment, when that

question was neither properly raised in nor decided by

the state court.

2. Whether, on a petition for writ of certiorari to the

Supreme Court of California, there is a final judgment

providing this Court with jurisdiction to address a claim

that the petitioner’s bodily tissue is property that was

taken by the state without just compensation in violation

of the Fifth Amendment, when the California Supreme

Court: (a) remanded the case to the trial court for, inter

alia, an evidentiary hearing which will determine

whether the petitioner gave a fully informed consent to

any alleged taking of his bodily tissue; and (b) held that

the allegations in petitioner’s complaint that respondents

conspired with one another to remove his bodily tissue

without his consent are deficient and must be amended

upon remand of the case to the trial court.

3. Whether the Supreme Court of California’s deter-

mination that there is no property interest in excised

human tissue rests on a fair and substantial basis, pre-

cluding a claim for just compensation under the Fifth

Amendment Takings Clause, when: (a) a contrary deter-

mination would deter vital medical research; and (b) a

patient’s rights can be protected through a state law claim

for breach of fiduciary duty.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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RESPONDENT SHIRLEY G. QUAN’S BRIEF IN

OPPOSITION

STATEMENT OF THE CASE

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REASONS WHY THE PETITION SHOULD BE

DENIED

I.

IT.

III.

CONCLUSION

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THIS COURT IS WITHOUT JURISDICTION TO

ADDRESS MOORE’S JUST COMPENSATION

CLAIM BECAUSE IT WAS NEITHER RAISED

IN NOR DECIDED BY THE STATE COURT...

BECAUSE THE CALIFORNIA SUPREME

COURT REMANDED THE CASF TO THE LOS

ANGELES COUNTY SUPERIOR COURT FOR

FURTHER PROCEEDINGS, THERE IS NO

FINAL DECISION WHICH CAN BE

REVIEWED BY THIS COURT.......600s000685

THE PETITION SHOULD BE DENIED

BECAUSE THERE WAS A FAIR AND SUB-

STANTIAL BASIS FOR THE CALIFORNIA

SUPREME COURT’S CONCLUSION THAT

MOORE DID NOT HAVE A PROPERTY

INTEREST IN HIS EXCISED TISSUE

SORVQese Bescese F068 42S 626408 825 £2 SO OS

12

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TABLE OF AUTHORITIES

Page

CASES

Amalgamated Food Employees v. Logan Valley Plaza,

EG ME os 6b 's 5 Swine us sas eveceunscerseaecs 5

Bailey v. Anderson,

ks 65 6 oN eo wh as eces sth vesevscces 9

Bankers Life and Cas. Co. v. Crenshaw,

eo US. -_, 106 S.Ct. 1645 (1988) . .............. 4,5

Bishop v. Wood,

naa sd Chess phe Sean See e sD RK eee 17

Board of Dirs. of Rotary Int’l v. Rotary Club,

Re eee 4, 6

Board of Regents v. Roth,

as oe ci bees wane ese ge nvecenss 17

Brotherton v. Cleveland,

eT te ES 0 18

Cal. Retail Liquor Dealers Ass’n v. Midcal Alum.,

EE 20

Cardinale v. Louisiana,

TT TT tw teeeebeceecseuen 4

Cincinnati S. R. Co. v. Snell,

sa Wbese eee cance deans 14

City of San Marino v. Roman Catholic Archbishop,

ee Se) 8

Cleveland Bd. of Educ. v. Loudermill,

Ne cack hee eue seed 19

Cox Broadcasting Corp. v. Cohn,

ce wet enceccttasu¥teen 13, 14

iv

TABLE OF AUTHORITIES —- Continued

Page

Demorest v. City Bank Farmers Trust Co.,

Be Sa. I I as bk ea ne ee ea S on cad oor wd ie 18, 20

Doers v. Golden Gate Bridge etc. Dist.,

Pe | eer ee : 6

Edelman v. California,

ee ree yy

First Lutheran Church v. Los Angeles County of

mE ee ere 7

Flynt v. Ohio,

PR eg ee ee ee ee 12

Gospel Army v. Los Angeles,

irae h hayes Save we Goa kon pesos 13

Illinois v. Gates,

BS eS ee a een 4,5

Jones v. Hildebrandt,

ee I as Sa eh wh bas canine nd sebaek bask 6

Lassiter v. Northampton County Bd. of Elections,

ee eS CAG a rwtses ae ve 8 5 a6 Oise bP eE SS * 6

Logan v. Zimmerman Brush Co.,

ee ee CLL yea in canes dad va Ko Sas 19

Louisville & N. R. Co. v. Woodford,

ee EE kbs Shoe cna h Ua GAs Wrenn eens es 6

McGoldrick v. Compagnie Generale Transatlantique,

SE 6h hod AEN Seba nee web a ee ON ee os 5

Meagher v. Minnesota Thresher Mfg. Co.,

WO a ME CE ao eek 5s ves kacdeeeankackskans 14

Michigan v. Tyler,

NO Re A SOOO ss 5 hos shes ce wsbevasesecaeesa ek

Vv

TABLE OF AUTHORITIES —- Continued

nah Page

Minnick v. California Dept. of Corrections,

WEP IIE 65 8 kh oe Ea ERK bS RG CONRAN wes wnive 16

Missouri & K. I. R. Co. v. Olathe,

ee As WU EE GAME concer kdwas hice ss hus canteens 14

Moore v. Regents of the Univ. of California,

ee fF Ot rrr Peer ree passim

North Dakota Pharmacy Bd. v. Snyder’s Store,

Gee Se Oe SE ho eo rc Fadaks es eeen sth bsneaeaen 13

O’Dell v. Espinoza,

ee I ose cnkarsn cus snten od ake eam en ee 13

Parker v. North Carolina,

eS Pee rere Tres Sere eT 5, 17

People ex rel. Department of Public Works v. Mascotti,

206 Cal. App. fe R-II eer rr ey 8

Public Workers v. Mitchell,

oe OR err er eet eee ree ee er 13

Radio Station WOW, Inc. v. Johnson, |

NE ROO yo AS See cab v an deevcssons ences 8, 12

Ridgway v. Ridgway,

ee eer ee ee ere 11

San Diego Gas & Elec. v. City of San Diego, °

ow eee err eee rere 15, 16

Street v. New York,

ge Sg BETTI ee TTT Te rer eer eee er 6

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

oe SB rT 10, 17, 18, 19

Webb v. Webb,

Pe SE OED oh vn ckScseevanaenencasaats 4, 6, 19

vi

TABLE OF AUTHORITIES —- Continued

Page

Williamson County Regional Planning Comm’n v.

Hamilton Bank of Johnson City,

SE SOE 6 oo vee c ors onsen baa vieeees 8, 9, 10

Zacchini v. Scripps-Howard Broadcasting Co.,

8 Be Be ree reer Seer ee ee re ee 12

STATUTES

eT no ok do sid cow's dieu adele’ 4, 12

California Health & Safety Code § 7150, et seq...... 20

RuLes OF COurRT

California Rules of Court

No. 90-1037

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In The

Supreme Court of the United States

October Term, 1990

>»

4

JOHN MOORE,

Petitioner,

VS.

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

DAVID W. GOLDE, M.D., SHIRLEY G. QUAN,

Respondents.

Lp.

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Petition For Writ Of Certiorari To The

Supreme Court Of California

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RESPONDENT SHIRLEY G. QUAN’S

BRIEF IN OPPOSITION

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Respondent Shirley G. Quan respectfully requests

that this Court deny the petition for writ of certiorari,

seeking review of the opinion of the Supreme Court of

California entered on July 9, 1990 in this case. That opin-

ion is reported at 51 Cal.3d 120, 271 Cal. Rptr. 146, 793

P.2d 479 (1990).

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STATEMENT OF THE CASE

Petitioner John Moore (“Moore”), who was gravely ill

with a condition known as hairy cell leukemia, sought

treatment from respondent Dr. David W. Golde

(“Golde”), a physician employed by respondent the

Regents of the University of California (“the Regents”) at

the Regents’ U.C.L.A. Medical Center. In order to save

Moore’s life, Golde recommended a splenectomy, i.e., the

removal of his spleen. Golde requested the surgical team

to provide him with a portion of Moore’s excised spleen.

He then directed respondent Shirley G. Quan (“Quan”), a

medical researcher employed by the Regents at the

U.C.L.A. School of Medicine, to conduct studies on that

tissue.! Those studies eventually lead to the development

of a cell line from Moore’s excised tissue which may

prove beneficial to other patients suffering from similar

ailments. The Regents thereafter applied for a patent on

that cell line, listing Golde and Quan as co-inventors.

When Moore learned of the existence of the cell line,

he instituted an action in California state court against

the Regents, Golde, Quan and various pharmaceutical

companies. He purported to allege state court claims for,

inter alia, conversion and breach of fiduciary duty based

on respondents’ alleged failure to disclose that one of

their purposes in removing his spleen was to have access

to it for nontherapeutic purposes. All causes of action

were predicated on Golde’s alleged duty, as Moore’s

treating physician, to fully disclose the purposes of

1 Contrary to the assertion in the petition (Pet. 3), Moore

never alleged that Golde and Quan had determined prior to

the operation that his cells were unique and extremely valu-

able.

proposed medical procedures. Because Quan was not a

physician and therefore had no personal duty to obtain

Moore’s informed consent, liability against her was predi-

cated on allegations she conspired with Golde to obtain

his bodily tissue without providing full disclosure. None

of Moore’s claims asserted any right under the United

States Constitution or any federal statute.

The trial court sustained respondents’ demurrers to

Moore’s complaint with leave to amend and, when he

declined to amend, dismissed the action. The California

Court of Appeal reversed, ruling that Moore had a prop-

erty interest in his excised bodily tissue and that he had

adequately alleged a cause of action for conversion under

state law. The California Supreme Court granted review

and affirmed in part and reversed in part the decision of

the California Court of Appeal. It held:

1. Moore could maintain a cause of action for

breach of fiduciary duty against Golde, his treating phy-

sician, if he could prove at trial that Golde failed to

inform him of Golde’s research and economic interests

before obtaining Moore’s consent to the removal of his

bodily tissue;

2. Moore’s allegations that the remaining defen-

dants, including Quan, conspired with Golde and were

therefore also liable for breach of fiduciary duty, were

“egregious examples of generic boilerplate” and required

amendment before Moore could go to trial against those

defendants on his breach of fiduciary duty claim; and

3. Moore could not state a cause of action for con-

version because he did not possess a property interest in

his excised tissue under existing California law and

compelling public policy considerations counseled

against extending California law to recognize a property

interest in such tissue.

The California Supreme Court remanded the case to

the trial court for further proceedings consistent with its

opinion.

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REASONS WHY THE PETITION SHOULD BE DENIED

I.

THIS COURT IS WITHOUT JURISDICTION TO

ADDRESS MOORE’S JUST COMPENSATION CLAIM

BECAUSE IT WAS NEITHER RAISED IN NOR

DECIDED BY THE STATE COURT.

This Court has repeatedly held that unless a federal

question has been properly “raised and decided” or

“pressed or passed upon” in the state court it will decline

to address that issue, as either a matter of jurisdiction or

as a prudential restriction. Bankers Life and Cas. Co. v.

Crenshaw, 486 U.S. _, __, 108 S.Ct. 1645, 1651 (1988);

Illinois v. Gates, 462 U.S. 213, 218-19 (1983); Cardinale v.

Louisiana, 394 U.S. 437, 439 (1969); 28 U.S.C.A. § 1257(a)

(West Supp. 1990). “It is well settled that this Court will

not review a final judgment of a state court unless ‘the

record as a whole shows either expressly or by clear

implication that the federal claim was adequately pre-

sented in the state system.’ ” Board of Dirs. of Rotary Int'l

v. Rotary Club, 481 U.S. 537, 550 (1987) (quoting Webb v.

Webb, 451 U.S. 493, 496-97 (1981)). The policy reasons for

this longstanding rule - comity to the states and practical

considerations including a need for a properly developed

record on appeal, see Webb v. Webb, 451 U.S. at 500-01;

McGoldrick v. Compagnie Generale Transatlantique, 309 U.S.

430, 434-35 (1940) - apply with special force when, as

here, “difficult issues of great public importance are

involved.”? Illinois v. Gates, 462 U.S., at 224; see also

Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. at __, 108

S.Ct. at 1651.

“Failure to present a federal question in conformance

with state procedure constitutes an adequate and inde-

pendent ground of decision barring review in this Court,

so long as the State has a legitimate interest in enforcing

its procedural rule.” Michigan v. Tyler, 436 U.S. 499, 512 n.

7 (1978); see also Parker v. North Carolina, 397 U.S. 790, 798

(1970); Amalgamated Food Employees v. Logan Valley Plaza,

391 U.S. 308, 313 n. 6 (1968), as explained in Justice

Harlan’s dissent, at 334-36 (“[W]hen a defendant has

failed to comply with such a rule [regarding the preserva-

tion of an issue in state court] ‘the argument cannot be

entertained here under an unbroken line of precedent’ ”);

Edelman v. California, 344 U.S. 357, 358-59 (1952).

“[W]hen ... the highest state court has failed to pass

upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the

state courts, unless the aggrieved party in this Court can

2 As we illustrate in section III, infra, Moore’s Fifth

Amendment claim raises a difficult issue of great public impor-

tance. That claim requires a finding that Moore possessed a

property interest in a cell line created from his excised tissue.

However, the recognition of a property interest in that cell line

would have disastrous effects on medical research, as innocent

medical researchers could then be held liable for conversion if

they conducted research on bodily tissue which had been

removed from a patient without his or her informed consent.

affirmatively show the contrary.” Street v. New York, 394

U.S. at 582; Board of Dirs. of Rotary Int'l v. Rotary Club, 481

U.S. at 550; Webb v. Webb, 451 U.S. at 496. Here, Moore

acknowledges that the California Supreme Court failed to

pass on the applicability of the Fifth Amendment. See Pet.

13 n. 14. As we show, the assumption the California

Supreme Court did not address that issue because it had

not been properly presented in conformity with Califor-

nia law is confirmed by the record.3

First, Moore failed to argue in opposition tv respon-

dents’ demurrers to his complaint in the trial court that

the alleged conversion of his bodily tissue and fluids

constituted a taking of his property without just compen-

sation.4 The California appellate courts “ ‘will ordinarily

not consider . . . erroneous rulings . .. where an objection

could have been but was not presented to the lower court

by some appropriate method... .’” Doers v. Golden Gate

Bridge etc. Dist., 23 Cal.3d 180, 184-85 n. 1, 151 Cal.Rptr.

837, 838-39 n. 1, 588 P.2d 1261 (1979). Moore’s failure to

3 In fact, the California Supreme Court expressly refused

to address Sandoz Pharmaceutical Corporation’s contention

the Regents took Moore’s cells pursuant to the power of emi-

nent domain, noting, inter alia, that Sandoz had failed to raise

the issue in the lower courts. 51 Cal.3d at 147-48 n. 44; Pet.

App. 36a n. 44.

4 Indeed, Moore’s state court complaint did not allege his

property had been taken without just compensation. See Pet.

App. 101a-148a. The failure to include such an allegation in his

complaint precludes this Court from considering his Fifth

Amendment claim. Jones v. Hildebrandt, 432 U.S. 183, 186, 189

(1977); Lassiter v. Northampton County Bd. of Elections, 360 U.S.

45, 50 (1959); Louisville & N. R. Co. v. Woodford, 234 U.S. 46, 51

(1914).

raise this issue in the trial court therefore precluded its

consideration by the California Court of Appeal.

Second, Moore did not argue in his briefs in the

California Court of Appeal that his property had been

taken without just compensation (see Res. App. 69a-226a)

and he failed to raise that contention as an additional

issue presented for review in his answer to the petitions

for review in the California Supreme Court (see Res. App.

239a-242a). Nor was the issue raised in any of the peti-

tions for review. See Res. App. 227a-238a. The California

Supreme Court therefore could not consider the issue. See

Cav. R. Cr. 29(b)(1) (“As a matter of policy, on petition for

review the [California] Supreme Court normally will not

consider: (1) any issue that could have been but was not

timely raised in the briefs filed in the Court of Appeal”);

Cav. R. Cr. 28 (“(5) . . . The answer of a party opposing

review may request the court to consider additional

issues if review is granted as to any or all issues raised in

the petition. An answer stating additional issues shall

conform to the requirements of paragraph (2)”).°

5 Moore contends he advanced his just compensation

claim in his answer brief on the merits in the California

Supreme Court. Pet. 11, 13-14. Not so. In that brief, Moore

made only a cursory, isolated assertion that his property had

been taken without due process of law, not that it had been

taken without just compensation. Pet. App. 97a. Moreover,

even if Moore had argued in his brief in the California

Supreme Court that he had been deprived of his property

without just compensation, the California Supreme Court

could not have considered the claim given his failure to raise it

in either his briefs in the California Court of Appeal or in his

answer to respondents’ petitions for review. Cat. R. Cr. 28(5),

29(b)(1).

Third, Moore’s assertion of the just compensation

issue for the first time in his petition for rehearing in the

California Supreme Court was untimely. Under California

procedure, contentions raised for the first time in a peti-

tion for rehearing will not be considered. People ex rel.

Dept. of Public Works v. Mascotti, 206 Cal.App.2d 772, 780,

24 Cal.Rptr. 679, 680 (1962); City of San Marino v. Roman

Catholic Archbishop, 180 Cal.App.2d 657, 679, 4 Cal.Rptr.

547, 561 (1960). The California Supreme Court’s denial of

Moore’s petitidn for rehearing without comment confirms

that his assertion of the Fifth Amendment issue was

untimely under California procedure and precludes this

Court from considering his claim. Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 128 (1944).

Moore’s contention he was not required to raise his

Fifth Amendment claim until the California Supreme

Court held he could not maintain a state law conversion

action is without merit. Williamson County Regional Plan-

ning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985), cited by Moore for this remarkable proposition,

holds no such thing. In Williamson, the successor-in-inter-

est to a land developer contended that a county planning

commission had taken its property without just compen-

sation by refusing to approve a proposed development on

the land. This Court held only that the just compensation

claim was not “ripe” for adjudication until the developer

had unsuccessfully utilized the state’s inverse condemna-

tion procedure in an effort to seek compensation for any

alleged taking.

Williamson does not change the settled rule that this

Court will not address a federal question that has not

been pressed or passed upon in state court. Although a

federal constitutional claim may not be ripe for adjudica-

tion until a litigant has been denied relief under state

court procedures, the litigant is not relieved of the obliga-

tion to raise his or her constitutional claim at the outset of

the state court proceedings, so that the issue may be

passed on by the state court in the event it denies relief

under state law.

Thus, even where, as in Williamson, a state has a

recognized procedure for seeking just compensation for

the taking of property, this Court has consistently refused

to address federal issues until it has first satisfied itself

that they had been properly raised in the course of the

state court proceedings. Accordingly, in Bailey v. Ander-

son, 326 U.S. 203, 205-07 (1945) this Court found it had no

jurisdiction to consider a just compensation claim which

had not been raised in a state court condemnation pro-

ceeding. It stated:

Appellant . . . insists that the state court judg-

ment failed to include in the award interest from

the date of the occupation ot his land by appel-

lee; that the award thus denied to him just com-

pensation for the land taken, in violation of the

due process clause of the Fourteenth Amend-

ment. . . . Appellant’s petition in the [state]

court asked that the award include interest from

the date of taking. The [state] court, without

explanation, rejected his claim for interest. But

throughout the proceedings in the [state] court

appellant made no claim to interest on constitu-

tional grounds, and made no attack on the con-

stitutionality of the award or the court’s decree

because of the asserted denial of interest. .. .

Appellant, for the first time, assailed on consti-

tutional grounds the asserted denial of interest

by his assignments of error in the State Supreme

10

Court of Appeals. . . . Inspection of the record

does not show that, in denying the writ of error,

the state court passed upon any constitutional

question not raised or passed upon in the course

of the proceedings below . . . Unless this affir-

matively appears upon the record brought here

for review on appeal, this court is without juris-

diction of the appeal.

See also First Lutheran Church v. Los Angeles County, 482

U.S. 304, 313 n. 8 (1987) (jurisdiction to hear Fifth Amend-

ment claim found where, even though state court inverse

condemnation suit invoked only state constitution, prop-

erty owner raised federal just compensation claim in state

court of appeal, which addressed claim on merits. “Hav-

ing succeeded in bringing the federal issue into the case,

appellant preserved this question on appeal to the

Supreme Court of California, . . . which declined to

review its Agins decision. Accordingly, we find that the

issue urged here was both raised and passed upon

below”); Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 159 n. 5 (1980) (jurisdiction to consider Fifth

Amendment just compensation claim found where the

claim had been raised and considered by state supreme

court).

The need to first raise the Fifth Amendment just

compensation claim in state court was particularly com-

pelling under the facts of this case. From the inception,

respondents argued Moore could not state a cause of

action for conversion because he did not possess a prop-

erty interest in his excised tissue.© Res. App. 24a-28a.

6 Cf. Williamson County Regional Planning Comm’n v. Ham-

ilton Bank of johnson City, 473 U.S. 172 (no dispute that the

(Continued on following page)

11

Moreover, no prior state court decision had sanctioned a

conversion action based on the misappropriation of

excised human tissue. 51 Cal.3d at 137; Pet. App. 19a.

Given the uncertainty whether Moore even possessed a

state law remedy, he should have raised his just compen-

sation claim at the outset of the state court proceedings,

thereby affording the state courts the opportunity to

address that claim in the all-too-likely event his state law

conversion claim would be rejected. Because he failed to

give the state courts the opportunity to pass on that

claim, it is too late for Moore to now ask that it be

considered by this Court.

Indeed, because this Court’s “ ‘only power over state

judgments is to correct them to the extent that they

incorrectly adjudge federal rights’ ” (Ridgway v. Ridgway,

454 U.S. 46, 54 (1981)), it is difficult to determine why

Moore contends the judgment of the California Supreme

Court is erroneous. Even if Moore had asserted in his

briefs in the California Court of Appeal and the Califor-

nia Supreme Court that he had been deprived of his

property without just compensation (he did not), the fact

remains that his complaint purported to allege only

causes of action under state tort law. Because the Califor-

nia Supreme Court is the final arbiter of state tort law, its

determination that Moore had failed to allege a cause of

action for conversion under state law (the only issue it

(Continued from previous page)

developer had a property interest in its real property or that an

owner of real property could bring an inverse condemnation

action to obtain just compensation for the taking of that prop-

erty).

12

could decide given the allegations of his complaint) is not

subject to review by this Court. See Zacchini v. Scripps-Howerd

Broadcasting Co., 433 U.S. 562, 566 (1977) (this Court has no

jurisdiction to correct a judgment which rests on an “inde-

pendent and adequate state ground”). The California

Supreme Court had no occasion to adjudicate, correctly or

incorrectly, Moore’s federal rights because he never pur-

ported to allege a cause of action based on the United States

Constitution or a federal statute.

II.

BECAUSE THE CALIFORNIA SUPREME COURT

REMANDED THE CASE TO THE LOS ANGELES

COUNTY SUPERIOR COURT FOR FURTHER PRO-

CEEDINGS, THERE IS NO FINAL DECISION WHICH

CAN BE REVIEWED BY THIS COURT.

Under 28 U.S.C.A. § 1257(a) this Court has jurisdic-

tion to review only “[flinal judgments or decrees.” This

statute has generally been interpreted “ ‘to preclude

reviewability . . . where anything further remains to be

determined by a State court, no matter how dissociated

from the only federal issue that has finally been adjudi-

cated by the highest court of the State.’” Flynt v. Ohio,

451 U.S. 619, 620 (1981) (quoting Radio Station WOW, Inc.

v. Johnson, 326 U.S. at 124). The finality requirement

“serves several ends: (1) it avoids piecemeal review by

federal courts of state court decisions; (2) it avoids giving

advisory opinions in cases where there may be no real

‘case’ or ‘controversy’ in the sense of Art[.] III [7];

? As this Court explained:

It has long been this Court’s “considered practice not

to decide abstract, hypothetical or contingent

(Continued on following page)

13

[and] (3) it limits federal review of state court determina-

tions of federal constitutional issues to leave at a mini-

mum federal intrusion in state affairs.” North Dakota

Pharmacy Bd. v. Snyder’s Store, 414 U.S. 156, 159 (1973).

Here there is no final judgment because the Califor-

nia Supreme Court reversed the trial court’s ruling on

defendants’ demurrers, in part, and remanded the case

for further proceedings.® See, O'Dell v. Espinoza, 456 U.S.

430 (1982) (no final decision where Colorado Supreme

Court remanded case for trial); Gospel Army v. Los Angeles,

(Continued from previous page)

questions, or to decide any constitutional question in

advance of the necessity for its decision, or to formu-

late a rule of constitutional law broader than is

required by the precise facts to which it is to be

applied, or to decide any constitutional question

except with reference to the particular facts to which

it is to be applied . . . ” Public Workers v. Mitchell, 330

U.S. 75, 90 n. 22; see also Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 510 (1975) (Rehnquist, J., dissent-

ing).

8 The California Supreme Court issued the following

directions:

The case is remanded to the Court of Appeal, which

shall direct the superior court to: (1) overrule

Golde’s demurrers to the causes of action for breach

of fiduciary duty and lack of informed consent; (2)

sustain, with leave to amend, the demurrers of the

Regents, Quan, Sandoz, and Genetics Institute to the

purported causes of action for breach of fiduciary

duty and lack of informed consent; (3) sustain, with-

out leave to amend, all defendants’ demurrers to the

purported cause of action for conversion; and (4)

hear and determine all defendants’ remaining

demurrers. 51 Cal.3d at 148; Pet. App. 36a-37a.

14

331 U.S. -» , 546 (1946) (no final judgment where Califor-

nia Sup: .e Court reversed and remanded case for a

new trial); Missouri & K.I.R. Co. v. Olathe, 222 U.S. 185, 186

(1911) (no final judgment where Kansas Supreme Court's

decision sustaining demurrer did not preclude amend-

ment to petition); Cincinnati S. R. Co. v. Snell, 179 U.S. 395,

397 (1900) (“a judgment reversing a case and remanding

it for .. . further proceedings of a judicial character, is

totally wanting in the requisite finality required . . . ”);

Meagher v. Minnesota Thresher Mfg. Co., 145 U.S. 608, 610

(1892) (no final judgment where Minnesota Supreme

Court affirmed an order overruling a demurrer).

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, this

Court identified four discrete categories in which a state

court’s determination of a federal issue has been treated

as a final judgment even though further proceedings are

mandated in the lower state court.? Moore does

9 The four categories established by Cox are:

(1) “[{C]ases in which there are further proceedings -

even entire trials — yet to occur in the state courts but where for

one reason or another the federal issue is conclusive or the

outcome of further proceedings preordained.” Id. at 479.

(2) Cases “in which the federal issue, finally decided by

the highest court in the State, will survive and require deci-

sions regardless of the outcome of future state court proceed-

ings.” Id. at 480.

(3) Cases “where the federal claim has been finally

decided, with further proceedings on the merits in the state

courts to come, but in which later review of the federal issue

cannot be had, whatever the ultimate outcome of the case.

Thus, in these cases, .if the party seeking interim review

(Continued on following page)

15

not suggest this case fits into any of those categories and

none appears applicable. Indeed, further proceedings in

the trial court will resolve at least two crucial issues upon

which Moore’s just compensation claim depends.

First, Moore’s just compensation claim is predicated

on the allegation respondents failed to inform him of

their research and economic interests when they obtained

his consent for removal of his bodily tissue. Therefore, on

the remand directed by the California Supreme Court, the

trial court must determine whether Moore knew of those

interests and consented to the removal of his tissue not-

withstanding that knowledge. If he did, no unconstitu-

tional taking would have occurred and any opinion by

this Court would be advisory. See San Diego Gas & Elec. v.

(Continued from previous page)

ultimately prevails on the merits, the federal issue will be

mooted; if he were to lose on the merits, however, the govern-

ing state law would not permit him again to present his federal

claims for review.” Id. at 481.

(4) Cases “where the federal issue has been finally

decided in the state courts with further proceedings pending in

which the party seeking review here might prevail on the

merits on nonfederal grounds, thus rendering unnecessary

review of the federal issue by this Court, and where reversal of

the state court on the federal issue would be preclusive of any

further litigation on the relevant cause of action rather than

merely controlling the nature and character of, or determining

the admissibility of evidence in, the state proceedings still to

come. In these circumstances, if a refusal immediately to

review the state court decision might seriously erode federal

policy, the Court has entertained and decided the federal issue,

which itself has been finally determined by the state courts for

purposes of the state litigation.” Id. at 482-83.

16

City of San Diego, 450 U.S. 621, 633 (1981) (finding “fur-

ther proceedings are necessary to resolve the federal

question whether there has been a taking at all” and

concluding the lower court’s decision was not final); see

also Minnick v. California Dept. Of Corrections, 452 U.S. 105,

127 (1981) (finding “because of significant developments

in the law - and perhaps in the facts as well - and

because of significant ambiguities in the record . . . we

conclude that we should not address the constitutional

issues until the proceedings in the trial court are finally

concluded and the state appellate courts have completed

their review of the trial court record”) (footnote omitted).

Second, Moore’s claim against Quan depends on his

ability to establish she conspired with Golde to remove

Moore’s bodily tissue without his informed consent.

(Only Golde, Moore’s treating physician, was authorized

and obligated to inform him of the purposes of the medi-

cal procedures performed on him.) However, in remand-

ing the case to the trial court, the California Supreme

Court held that Moore’s complaint had to be amended (51

Cal.3d at 148; Pet. App. 36a-37a) because his conspiracy

allegations against Quan are “egregious examples of

generic boilerplate. . . . [{] Nowhere in the third amended

complaint does Moore specifically allege that any defen-

dant other than Golde knew that Moore had not received

adequate disclosures.” 51 Cal.3d at 134 n. 12; Pet. App.

14a-15a n. 12. If, following the remand to the trial court,

Moore is unable to correct the deficiencies in his com-

plaint identified by the California Supreme Court, any

decision by this Court regarding Quan’s potential liability

17

under the Fifth Amendment Takings Clause would be

advisory only.!°

Ill.

THE PETITION SHOULD BE DENIED BECAUSE

THERE WAS A FAIR AND SUBSTANTIAL BASIS FOR

THE CALIFORNIA SUPREME COURT’S CONCLU-

SION THAT MOORE DID NOT HAVE A PROPERTY

INTEREST IN HIS EXCISED TISSUE.

Moore has no claim under the Fifth Amendment

Takings Clause unless he possessed a property interest in

his excised tissue. However, “[p]roperty interests . . . are

not created by the Constitution. Rather, they are created

and their dimensions are defined by existing rules or

understandings that stem from an independent source

such as state law.” Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. at 161, quoting Board of Regents v. Roth,

408 U.S. 564, 577 (1972); see also Bishop v. Wood, 426 U.S.

341, 345 (1976) (the existence of “an enforce ‘able expecta-

tion of continued public employment,” a property right,

was determined by state law). The California Supreme

Court’s determination that Moore did not have a prop-

erty interest in his excised tissue must be upheld so long

as it rests on a “fair and substantial basis.” As this Court

‘0 Moreover, Moore’s failure to satisfy state procedural

rules regarding the allegation of a conspiracy constitutes an

adequate and independent state ground for the California

Supreme Court’s decision which precludes review by this

Court. Michigan v. Tyler, 436 U.S. at 512 n. 7; Parker v. North

Carolina, 397 U.S. at 798; Edelman v. California, 344 U.S. at

358-59.

18

explained in Demorest v. City Bank Farmers Trust Co., 321

U.S. 36, 42 (1944):

[T]he [state] Court of Appeals disposed of their

cases on the ground that appellants have never

possessed under New York law such a property

right as they claim has been taken from them. If

this is the case, appellants have no question for

us under the Due Process Clause... . “[I]t is the

province of this Court to inquire whether the

decision of the state court rests upon a fair or

substantial basis. . . . [I]f . . . the nonfederal

ground of decision has fair support, . . . this

Court will not inquire whether the rule applied

by the state court is right or wrong, or substitute

its own view of what should be deemed the

better rule, for that of the state court.” (footnote

omitted).

Citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, Moore argues that the California Supreme Court

11 In Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991),

the Sixth Circuit applied these principles in the course of

addressing a plaintiff’s 42 U.S.C. § 1983 claim that a county

coroner removed her deceased husband’s corneas without due

process and in violation of the Equal Protection Clause. (The

plaintiff did not make a just compensation claim.) To resolve

the issue, the Sixth Circuit looked to state law, explaining that

“[tlo determine whether [plaintiff’s] interest in her husband’s

corneas rises to the level of a ‘legitimate claim of entitlement’

protected by the due process clause, we must examine the laws

of the state of Ohio. . . . State supreme court decisions are the

controlling authority for such determinations.” The Sixth Cir-

cuit concluded that the plaintiff’s right under state law to

dispose of her husband’s body was a “legitimate claim of

entitlement” protected by the Due Process Clause. Here, how-

ever, the California Supreme Court held Moore had no legiti-

mate expectation of a right to possession of his bodily tissue

following its removal.

19

impermissibly refashioned state property law to deny

him compensation to which he would otherwise be enti-

tled under the Fifth Amendment Takings Clause. Moore’s

argument begs the question. Webb’s held only that once a

private property interest is recognized by the state, it is

protected by the Fifth Amendment Takings Clause. Spe-

cifically, in Webb’s the state attempted to avoid paying

just compensation for the taking of accrued interest on

interpleader funds by recharacterizing the principal as

“public money” because it was temporarily held by the

court. This Court rejected the attempt, holding that “ ‘a

state by ipse dixit, may not transform private property

into public property without compensation.’ ” Id. at 164;

see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

538-41 (1985) (“While the legislature may elect not to

confer a property interest in [public] employment, it may

not constitutionaily authorize the deprivation of such an

interest, once conferred, without appropriate procedural

safeguards.” (emphasis added)); Logan v. Zimmerman

Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of

property, the Court has emphasized, is an individual

entitlement grounded in state law, which cannot be

removed except ‘for cause.’” (emphasis added)).

These decisions have no application here because the

California Supreme Court found there was no property

interest in excised bodily tissue under existing California

law (51 Cal.3d at 136-42; Pet. App. 18a-28a),!2 and refused

12.” ‘To establish a conversion, plaintiff must establish an

actual interference with his ownership or right of possession

.... Where plaintiff neither has title to the property alleged to

have been converted, nor possession thereof, he cannot

(Continued on following page)

20

to expand California law to create a hitherto nonexistent

property right in such tissue. 51 Cal.3d at 142-47; Pet.

App. 28a-36a. The California Supreme Court’s conclusion

that there is no property interest under state law is enti-

tled to deference by this Court. See Cal. Retail Liquor

Dealers Ass’n v. Midcal Alum., 445 U.S. 97, 111 (1980)

(“[Tjhis Court accords ‘respectful consideration and great

weight to the views of the state’s highest court’ on mat-

ters on state law”). Although Moore denigrates the Cali-

fornia Supreme Court’s analysis as lacking a “substantial

basis in either logic or law” and resting on “obvious non

sequiturs” (Pet. 14), he fails to even mention the public

policy considerations relied upon by that court to support

its decision. However, those considerations are significant

and compelling and establish that the California Supreme

Court’s conclusion rests “upon a fair and substantial

basis.” Demorest v. City Farmers Trust Co., 321 U.S. at 42.

Specifically, the California Supreme Court explained

that recognition of a property interest in excised bodily

tissue would have a devastating effect on medical

research because it would “threaten with disabling civil

liability innocent parties who are engaged in socially

(Continued from previous page)

maintain an action for conversion.’ ” 51 Cal.3d at 136; Pet.

App. ,i8a. The California Supreme Court expressly noted that

the ‘Uniform Anatomical Gift Act, Cal. Health & Safety Code

§ 7150, et seq., relied on by Moore to support his contention he

had a property interest in his excised tissue, does not permit

the donor of a transplantable organ to receive valuable con-

sideration” for the transfer. Cal.Health & Safety Code § 7155

(West Supp. 1990); see 51 Cal.3d at 137 n. 22; Pet. App. 19a n.

22.

21

useful activities, such as researchers who have no reason

to believe that their use of a particular cell sample is, or

may be, against a donor’s wishes.” 51 Cal.3d at 143; Pet.

App. 29a. This is so because under state law, conversion

of property is a strict liability tort in which questions of

good faith, lack of knowledge and motive are ordinarily

immaterial. 51 Cal.3d at 144 n. 38; Pet. App. 30a n. 38.

Therefore, a finding that excised tissue was property

“would impose liability on all those into whose hands the

cells come, whether or not the particular defendant par-

ticipated in, or knew of, the inadequate disclosures that

violated the patient’s right to make an informed deci-

sion.” 51 Cal.3d at 144; Pet. App. 30a-31a. Under Moore’s

theory, “with every cell sample a researcher purchases a

ticket in a litigation lottery. Because liability for conver-

sion is predicated on a continuing ownership interest,

‘companies are unlikely to invest heavily in developing,

manufacturing, or marketing a product when uncertainty

about clear title exists’... . In our view... ‘[iJt is not

unreasonable to conclude in these circumstances that the

imposition of a harsher test for liability would not further

the public interest in the development and availability of

these important products.’ ” 51 Cal.3d at 146; Pet. App.

33a-34a.

Moreover, the California Supreme Court explained

that “there is no pressing need to impose a judicially

created rule of strict liability since enforcement of physi-

cian’s disclosure obligations will protect patients against

the very type of harm with which Moore was threat-

ened.” 51 Cal.3d at 147; Pet. App. 35a-36a. “Liability

based upon existing disclosure obligations, rather than an

22

unprecedented extension of the conversion theory, pro-

tects patients’ rights of privacy and autonomy without

unnecessarily hindering research.” 51 Cal.3d at 144; Pet.

App. 30a.

In short, the California Supreme Court did not, by

ipse dixit, refashion state property law to deprive Moore

of an established property interest — it decided, on the

basis of settled law and sound public policy consider-

ations, that there was not and should not be a property

interest in excised tissue. Because the California Supreme

Court’s decision rests on a fair and substantial basis, it is

not subject to review by this Court.

a

wr

CONCLUSION

For all the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Horvitz & Levy

PetTeR ABRAHAMS*

GERALD SERLIN

15760 Ventura Boulevard

18th Floor

Encino, California 91436

(818) 995-0800 and (213) 872-0802

Counsel for Respondent

Shirley G. Quan

* Counsel of Record

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