Opposition Brief — Martin v. Martin

a

Supreme Court, U.S.

FILED

DEC 26 1945

>

No. 95-821 pope

In The

Supreme Court of the United States

October Term, 1995

+

MARY MARTIN, Guardian of Michael Martin,

Petitioner,

PATRICIA MAJOR and LEETA MARTIN,

Respondents.

¢

Petition For Writ Of Certiorari

To The Michigan Supreme Court

¢

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

S

JoHN H. Hess

Counsel of Record

DanieL B. Hess

Hess & Hess, P.C.

4145 Kalamazoo Ave., S.E.

Grand Rapids, MI 49508

616/281-2400

Attorneys for Respondents

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Michael Martin lives in a nursing home where he

appears to be content with his life. All parties and courts

agree that he is not terminally ill, not in a comatose or

persistent vegetative state, and not in pain. He receives

food and water through a feeding tube. Petitioner, Mar-

tin’s wife and legal guardian, sought court permission to

authorize the feeding tube removal. The Michigan

Supreme Court held that the common law doctrine of

informed consent allows petitioner to authorize the feed-

ing tube removal if the evidence clearly and convincingly

shows that Martin, while competent, issued directives

embracing the nature and status of his current condition.

After evaluating the testimony, the Court ruled that peti-

tioner’s uncorroborated testimony concerning his pre-

vious statements did not rise to the level of clear and

convincing evidence.

Petitioner seeks review of the Michigan Supreme

Court decision that Martin should be allowed to continue

to live, claiming the decision is an “extreme response” to

those cases which have confronted the right to withdraw

medical treatment. Respondents, Martin’s sister and

mother, oppose granting a Writ of Certiorari because

Michigan’s decision is consistent with those of other

courts including this Court, and because the petitioner

seeks an extreme result - the removal of the feeding tube

of a person who appears content with his present condi-

tion and surroundings, who is expressing a current desire

to live, and who is not in great pain, terminally ill, or in a

persistent vegetative or comatose state. Had the Court

held for the petitioner, Martin would have been the first

ii

QUESTIONS PRESENTED - Continued

appellate case nationwide authorizing withdrawal of life

supports from an incompetent person who was neither in

a persistent vegetative state nor terminally ill. The Michi-

gan Supreme Court was unwilling to cross that threshold

on the facts of this case. Two questions are presented:

(1) Whether a state court violates a per-

son’s fundamental Fourteenth Amendment lib-

erty interests by denying a guardian’s petition

to withdraw a feeding tube and terminate the

person’s life, where the court recognizes the

common law right of informed consent,

acknowledges that the person is not in a

comatose or persistent vegetative state, not ter-

minally ill, and not in pain, and the court rules

that the guardian’s uncorroborated statements

concerning the person’s purported wish to have

his feeding tube withdrawn because of his pre-

sent medical condition do not meet the state’s

clear and convincing evidence standard.

(2) Whether a state court violates a per-

son’s fundamental liberty interests by failing to

hold that a guardian has been appointed as a

“surrogate” to make treatment decisions for the

person, where the guardian has failed to raise

the issue in the state courts, and where the

evidence, if evaluated, would be substantially

weaker than the evidence which the court evalu-

ated in determining that the guardian had failed

to prove by clear and convincing evidence that

the person would want his feeding tube with-

drawn in his present medical condition.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............. i

TABLE OF AUTHORITIES.............. ‘iwiee ae

cere. cbiceccccecceeocucee itheveteees a

mee yy de yy |) l

REASONS FOR DENYING THE PETITION..... oy ane

ee ks ribveuedes . 30

iV

TABLE OF AUTHORITIES

Page

Cases

Cruzan v. Director, Missouri Department of Health,

Gar SED. Bee CR sh. cécvegdsncndeedsveccedeces passim

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988)...... 9, 21

Drabick v. Drabick, 245 Cal. Rptr. 840 (Ct. App.),

cert. denied, 488 U.S. 958 (1988), reh’g denied, 488

As eS ono voce teuces 4000000c0enuaneunnee 10

Eichnar v. Dillon, 52 N.Y.2d 363, 420 N.E.2d 64

SN 406s iiednbouwiees +40 eee eae saan 21

Elbaum v. Grace Plaza, Inc., 544 N.Y.2d 840 (N.Y.

Age. U6e. 1968) .cccccscccccvcccvescssessecosvcees 20

In re Baby “K,” 16 F.3d 590 (4th Cir. 1994), cert.

denied, 115 S. Ct. 91 (1994)......... 0. ccc cece eee eee 10

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985)...... 18

In re Infant Doe, No. GU8204-00 (Ind. Cir. Ct. Mon-

roe County Apr. 12, 1982), writ of mandamus

dismissed sub nom. State ex rel Infant Doe v. Baker,

No. 482 S 140 (Ind. May 27, 1982), cert. denied,

GOO GRE Tie GP a 6 be ict vccrccass vitivessovece 10

In re Jane Doe, 583 N.E.2d 1263 (Mass. 1992), cert.

denied sub nom. Doe v. Gross, 112 S. Ct. 1512

SE vd Web. cb bus coke eee ceeded ved eone wes 10

In re Jobes, 529 A.2d 434 (N.J.), reconsideration and

stay denied, 531 A.2d 1360 (N.J. 1987), cert. denied

sub nom. Lincoln Park Nursing & Convalescent

Home v. Kahn, 483 U.S. 1036 (1987)...... 8, 10, 12, 22

In re Martin, 205 Mich. App. 96, 517 N.W.2d 749

SUE bd cia'GS 60666000 00 dk re cena eetetinch ates 2

In re Martin, 450 Mich. 204, _. N.W.2d

SERENA GIS. ete e TER Sarees es. passim

Vv

TABLE OF AUTHORITIES - Continued

Page

In re Philip B., 156 Cal. Rptr. 48 (Ct. App. 1979),

cert. denied sub nom. Bothman v. Warren B., 445

a We EE vb nnn xeudececkoriie err. 10

In re Prange, 520 N.E. 2d 946 (Ill. App. Ct.),

vacated, 527 N.E. 2d 303 (Ill.), cert. denied sub

nom. Murphy v. Benson, 488 U.S. 892 (1988)........ 10

In re Quinlan, 355 A.2d 647 (N.J., 1976) cert. denied

sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) .... 10

In re Rosebush, 195 Mich. App. 675, 491 N.W.2d 633

GROUT S$ cnccvvesNhenckseseedeuriceneeemoeeeeant 17

In re Storar, 420 N.E. 2d 64 (N.Y.), cert. denied, 454

Sa ee CONE 04000 idk Cae eanabeakte 10

In re Swan, 569 A.2d 1202 (Me. 1990) ............... 20

In re Tavel, 661 A.2d 1061 (Del. 1995) ............... 20

In re Westchester County Medical Center on behalf of

O'Connor, 72 N.Y.2d 517, 531 N.E.2d 607 (N.Y.,

i EP ERT Eee Tiree rere Terre ire 12, 18, 21

Johnson v. Thompson, 971 F.2d 1487 (10th Cir. 1992),

cert. denied, 61 U.S.L.W. 3581 (U.S. Feb 23, 1993) .... 10°

Matter of Hughes, 259 N.J. Super 193, 661 A.2d

SRGw rede GUGE AUD, TOWED oc vac cnundcccvesesscees 22

Michael H. v. Gerald D., 491 U.S. 110 (1989) ......... 27

Parham v. J].R., 442 U.S. 584 (1979) ......... Foecd @ auth 27

People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994),

cert. denied sub nom. Kevorkian v. Michigan, 115 S.

a. OF UY EEE ob cbe bic enceas cecenvaderuseruuences. 10

Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). ..28, 29

vi

TABLE OF AUTHORITIES - Continued

Page

Weber v. Stony Brook Hosp., 456 N.E. 2d 1186 (N.Y.),

cert. denied, 424 U.S. 1026 (1983). ape tal 10

Youakim v. Miller, 425 U.S. 231 (1976) (per curiam) 25

CONSTITUTIONAL PROVISION

U.S. Const. Amend. XIV, § 1 11, 14

STATUTI

MCL 700.496; MSA 27.5496

Court Rutt

Sup. Cr. R. 14.1(h) 1, 24, 2!

JT

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

Respondents, Patricia Major and Leeta Martin, Mic-

hael Martin’s sister and mother, ask this Court to deny a

Writ of Certiorari to review the judgment and opinion of

the Michigan Supreme Court in this case for reasons

stated below.

JURISDICTION

Respondents contest this Court's jurisdiction as to

petitioner’s Issue I because the Michigan Supreme Court

decision was made on the basis of Michigan’s recognition

of the common law doctrine of informed consent, and

because it properly determined on the facts that peti-

tioner had failed to present clear and convincing evidence

of what Michael Martin’s wishes were regarding the

withdrawal of life support equipment in his present med-

ical condition. Respondents contest this Court's jurisdic-

tion as to petitioner’s Issue II for the reasons stated

above, and because petitioner failed to raise and argue

this issue in the courts below, Sup. Cr. R. 14.1(h).

COUNTERSTATEMENT

Respondent responds to the numbered paragraphs in

petitioner’s petition as follows:

1. The Michigan Supreme Court, in considering the

central issue in this case — the factual content and suffi-

ciency of Michael Martin’s previously stated desires -

prefaced its discussion by observing that:

[O]ur review of the record reveals that virtually

all the witnesses agreed that Mr. Martin is not in

a vegetative state and is not suffering from the

type of incapacitation referenced in his expres-

sion of a desire not to continue life-sustaining

1

2

medical treatment. In re Martin, 450 Mich. 204,

229, _ N.W.2d ___ (1995).

The Michigan Court of Appeals decision in this case,

In re Martin, 205 Mich. App. 96, 99, 517 N.W.2d 749 (1994)

observed that “Michael remains conscious, he has some

awareness of his surroundings, and he can communicate

to some extent through head nods.”

The trial court, in its post-remand ruling from the

bench, observed that Martin:

[I]s not in a persistent vegetative state, nor is he

terminally ill in any common sense of the word.

Terminal, obviously, if they pull the tube, — but

no, he is not terminally - that he has some

disease at the moment that . . . would be medi-

cally said that he was going to die. Right now he

is just prone to infections, obviously, but he is

expected to have a normal life expectancy. [Pro-

bate Court Vol. 7, post remand, p. 115; included

in Appellee’s [now Appellant’s] Appendix to

her brief on appeal to the Michigan Supreme

Court, Vol. IL, p. 556b.]

The trial judge’s own direct observations of Michael

support that holding.' (T92. Vol. VIII pp. 12-16) (Mich R

pp. 98a-102a).

Dr. Kreitsch, a certified physiatrist and director of the

brain injury section of the Mary Free Bed Facility in

Grand Rapids, MI (T92. Vol. IV pp. 155-158) testified that,

using the general Rancho Los Amigos Scale of Cognitive

Awareness for people who have brain injuries, Martin’s

behavior placed him at Level Five with aspects of Level

' Judge Greig discussed his visit with Martin the previous

day. He reported that Martin appropriately communicated his

need for a guardian, his specific job at Godwin School, that he

had been a member of a pit crew at a local race track, that he

could move his right, but not his left side, and did so on com-

mand.

3

Six out of eight levels - Level One being totally comatose

and unresponsive and Level Eight being functional.

According to Dr. Kreitsch, individuals in Level Five are

“pleasant and cooperative but disoriented.” (T92. Vol. IV

pp. 173-176; T93 Vol. 3 p. 89). Dr. Kreitsch further stated

that Martin cooperated to the limit of his ability by show-

ing affect, often smiling and giving yes and no responses

by head nods to verbal questions. Martin indicated that

he was having no pain in general and could not recall

having had much pain recently. Martin seemed “pleasant

and attentive.” Martin indicated that he could watch TV

and follow some shows. “He brightened up with a large

grin when asked if he liked cartoons.” (Mich R pp.

32a-38a; T92. Vol. IV pp. 162-176).

Martin’s condition was not so easily tolerated by his

guardian, who testified:

I think that taking a person, such as Mike, since

he himself was a private person. . . , and dis-

playing him in a public atmosphere, I think, was

a degrading area to part of his life.

I mean, if it wasn’t bad enough that at Hal-

loween they dressed him up as an M&M -

. and normal every day people see someone

that is severely impaired, they are stared at, they

are looked at, children don’t understand, they

sit and make comments, and that has got to be

very degrading. I would not want to be in a

position like that to be out in a public place and

I don’t think that I would want that for Mike.

And I think going to a Tiger Stadium where

a lot of people take their children Mike and

others from the facility probably were degraded

more than got enjoyment out of — because |

don’t think they understood what they were

even doing there, whether they even understood

that it was a ball game... .

4

I’ve gone in where Mike has been in the TV

room with others from the facility. To me that

wouldn’t be degrading because he’s with, I

guess you'd have to say others that are in the

same situation as him, but they’re not out on

display in a public way; and | think to publicly

take these people out to bowling alleys and

things like that I think is wrong. (T93. Vol. II; p.

78-79).

Chief Justice William Rehnquist, in this Court’s

Cruzan v. Director, Missouri Department of Health, 497 U.S.

261, 286 (1989) decision, observed that:

Close family members may have a strong feeling

- a feeling not at all ignoble or unworthy, but

not entirely disinterested, either — that they do

not wish to witness the continuation of the life

of a loved one which they regard as hopeless,

meaningless, and even degrading.

Elements of that concern are present here, as shown

by the guardian’s testimony quoted above. There is little

wonder that the community of people with disabilities is

concerned about the potential impact that a case such as

this could have if, indeed, third parties are allowed to

decide whether to allow or withdraw life supporting

medical equipment without the requirement of a clearly

and convincingly expressed previous intent.?

2 Two amicus briefs were submitted to the Michigan

Supreme Court supporting the respondents herein. Michigan

Protection and Advocacy Service, Inc., a federally funded and

chartered organization with the specific mission of protecting

the rights of people with disabilities submitted a brief for itself,

American Disabled Assistant Programs Today (ADAPT), the

Association for Community Advocacy, the ARC of Michigan,

the Autism Society of Michigan, the Disability Rights Bar Asso-

ciation, the Disability Network, and United Cerebral Palsy of

Michigan. The National Legal Center for the Medically

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5

2. Petitioner’s assertion that numerous constitu-

tional issues were raised below is true. However, it is

important to note that it was the respondents who raised

the majority of those issues. Of even greater importance,

petitioner never raised the constitutional claim now

stated as her Issue II, choosing instead to rest upon her

authority as a guardian under Michigan guardianship

law.

The petitioner refers to the appointment of a Guard-

ian ad Litem [GAL] in the courts below. The fact is that

the person so appointed acted as the GAL for both Martin

and his minor children. The fundamental injustice created

thereby is shown in the following portion of the GAL’s

closing argument to the trial court at the remand hearing:

I don’t think there’s any question that Michael

Martin can never again be a functioning, effec-

tive father, or for that matter, person. So for that

reason, as I said in my report, my joint assess-

ment of what is in the best interest of Michael

Martin’s two minor children for whom I’ve been

appointed their guardian-ad-litem is that nei-

ther of them are being served by the continua-

tion of his catastrophically impaired life, nor is

there any reasonable or realistic expectation that

this situation will ever change. (T93. Vol. 7, p.

121).

3. Much of what petitioner claims here already has

been addressed in paragraph 1, above. All parties and the

courts clearly recognized that, whatever Martin’s current

physical and mental abilities might be, he appears con-

tent with his present condition and surroundings, and is

Dependent and Disabled submitted an amicus brief on behalf of

itself, the Michigan Handicapper Caucus and the Ethics and

Advocacy Taskforce for the Nursing Home Action Group.

6

not in great pain, terminally ill, or in a persistent vegeta-

tive or comatose state. Being a “total care patient” is

neither the functional nor logical equivalent of being in a

persistent vegetative state. Petitioner’s footnote 5 estab-

lishes nothing more than Martin’s legal incapacity ‘to

make decisions concerning his care and treatment.

Martin’s cognitive skills and abilities were assessed

in detail in the neuropsychological report of Dr. Walter

Zetusky, who has doctorates in neurochemistry and neu-

ropsychology and has extensive experience working with

individuals who have brain injuries. (T93. Vol. 3 pp.

151-158). The Neurologic Center asked Dr. Zetusky to

evaluate Martin in 1990 for treatment purposes only.* His

report (Mich R pp. 42a-45a) and later testimony (T93. Vol.

3. pp. 165-181p; Mich R pp. 46a-62a) establish that Martin

has an intelligence quotient of 63, but because of a signifi-

cant degree of scatter due to concentration and communi-

cation problems, it could be as high as 77, with the

average IQ being between 90 and 110.

Petitioner cites to Martin’s “numerous” uncorrobo-

rated discussions with her concerning his wishes and not

using “machines.” The record does not support a finding

that Martin’s previous expressions of intent to not live in

a dependent state included the desire to have food and

water withheld, nor is there any suggestion that he had

an informed understanding of the consequences of such

withdrawal, which would result in a slow and painful

death by starvation. ~

Equally important, all testimony purportedly sup-

porting the claim that Martin previously had authorized

> Dr. Zetusky’s evaluation and IQ testing and report

occurred 1'/2 years before the petitioner filed her Petition for

Removal of Life Supports.

OE ——

7

the withdrawal of food and water in his present circum-

stance came from a single source - his guardian and wife.

As the Cruzan Court suggested, the quality and quantity

of the testimony petitioner now claims constituted clear

and convincing evidence likely would not have been

permitted into court had this been a run-of-the-mill civil

suit, due to application of the statute of frauds, the parol

evidence rule and the hearsay rules, Cruzan, at 285.

Indeed, under Michigan’s Designation of Patient Advo-

cate Act* the petitioner would not be permitted to act

even as a witness to his written designation of an advo-

| cate. It is that same testimony of uncorroborated state-

ments to petitioner which she now claims for the first

time also operated to designate her as Martin’s surrogate.

This is especially significant given the possible conflict of

interest and petitioner’s comments regarding the degra-

dation.

4. The petitioner accurately reports the Michigan

Court of Appeals decision [Martin II] in this paragraph.

However, the Michigan Supreme Court reversed the

Court of Appeals after stating the “clear and convincing

evidence” standard? it adopted in its decision. The Court

* MCL 700.496; MSA 27.5496. The Act was enacted several

years after Martin’s catastrophic accident.

5 The Court stated that clear and convincing evidence is

such evidence which:

“produce[s] in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations

sought to be established, evidence so clear, direct and

weighty and convincing as to enable [the factfinder]

to come to a clear conviction, without hesitancy, of the

truth of the precise facts in issue.” .. . Evidence may

be uncontroverted, and yet not be “clear and convinc-

ing.” . . . Conversely, evidence may be “clear and

convincing” despite the fact that it has been

8

specifically found that the petitioner’s uncorroborated

testimony and affidavit was not “so clear, direct and

weighty and convincing as to enable [the factfinder] to

come to a clear conviction, without hesitancy, of the truth

of the precise facts in issue, [citation omitted].” Id., 450

Mich. at 233. The evidence, even if accurate, simply was

not substantial enough to justify the authorization the

petitioner sought, nor is it sufficient to support the claim

now made that Martin “designated” his guardian as his

lawful “surrogate.”

5. Petitioner for the first time raises the question of

why the Michigan Supreme Court “was free to disregard

Michael’s clear wish to have Mary take charge of his

treatment decisions in the event of his incapacity.”© There

is no record evidence whatsoever that Martin specifically

stated to petitioner that he designated her as his surro-

gate. She relies instead on such rough comments as that

“I will haunt you” to indicate Martin’s alleged desire that

petitioner be his surrogate. Not one other witness, includ-

ing those friends with whom Martin had discussed not

living like a vegetable, testified on that point.

When this case first was filed, this Court’s decision in

Cruzan already was two years old. There was no question

that petitioner had the burden of proof on all issues, nor

was there any question in Michigan that her constitu-

tional standard of proof, also per Cruzan, was “clear and

convincing” evidence. The case was tried as a power of

guardian case, and the Michigan Supreme Court properly

held that the common law doctrine of informed consent,

assuming the burden of proof was met, allowed a third

party to exercise the choices of a formerly competent

contradicted. [In re Jobes, [108 N. J. 394, 529 A.2d 434

(1987)] at 407-408.] Id., 450 Mich. at 227.

© Petitioner’s Petition for Writ of Certiorari, p. 9.

9

person. Thus, Michigan law provides access to surrogate

decision making, but the Supreme Court said the evi-

dence here does not meet Michigan standards.

Using the doctrine of informed consent and the clear

and convincing evidence standard, the Michigan

Supreme Court protected both the petitioner’s right to

due process, and Martin’s right not to be separated from

his daily food absent evidence meeting the enunciated

standard. The petitioner could not meet her burden with

the facts presented at the hearings. Petitioner’s loss on

the facts is not elevated to a constitutional violation

under either theory here advanced by petitioner. Plainly

and simply, the Martin Court did what courts across the

states have done over these past twenty years. The Court

took the state of the accepted law on cases involving the

withdrawal of life support systems, as developed in the

laboratory of the states, and fairly applied it to the facts

here.

REASONS FOR DENYING THE PETITION

The Missouri Supreme Court, in Cruzan v. Harmon,

760 S.W.2d 408 (Mo. 1988), affirmed by this Court in

Cruzan, supra, identified what might be the key force

behind a state’s interest in preserving the lives of people

who are in situations similar to Michael Martin’s. The

Court stated:

Where the patient is not terminally ill, as here,

the profoundly diminished capacity of the

patient and the near certainty that the condition

will not change leads inevitably to quality of life

considerations. The argument made here, that

Nancy will not recover, is but a thinly veiled

statement that her life in its present form is not

worth living. Yet a diminished quality of life

does not support a decision to cause death.

Cruzan v. Harmon, 760 S.W.2d at 424.

10

The petitioner’s brief infers that the history of state

court involvement in cases questioning the authority of

surrogates to exercise the treatment interests of people

unable to do so for themselves is a recent development.

This is not true. The first reported state appellate court

decision on the issue, In re Quinlan, 355 A.2d 647 (N.J.,

1976) cert. denied sub nom. Garger v. New Jersey, 429 U.S.

922 (1976), was litigated more than twenty years ago, and

was decided nineteen years ago. Since Quinlan, multiple

states have confronted the general issue presented here.

Indeed, all 50 states and the District of Columbia now

have some form of living will or patient advocacy statute

in place to address the surrogate decision making issue.”

7 Indeed, this Court received and denied eight petitions for

Writ of Certiorari on these issues in the fifteen years prior to its

decision in Cruzan, including the Quinlan case: In re Philip B.,

156 Cal. Rptr. 48 (Ct. App. 1979), cert. denied sub nom. Bothman v.

Warren B., 445 U.S. 949 (1980); Drabick v. Drabick, 245 Cal. Rptr.

840 (Ct. App.), cert. denied, 488 U.S. 958 (1988), reh’g denied, 488

U.S. 1024 (1989); In re Prange, 520 N.E. 2d 946 (Ill. App. Ct.),

vacated, 527 N.E. 2d 303 (Ill.), cert. denied sub nom. Murphy v.

Benson, 488 U.S. 892 (1988); In re Infant Doe, No. GU8204-00 (Ind.

Cir. Ct. Monroe County Apr. 12, 1982), writ of mandamus dis-

missed sub nom. State ex rel Infant Doe v. Baker, No. 482 S 140 (Ind.

May 27, 1982), cert. denied, 464 U.S. 961 (1983); In re Jobes, 529

A.2d 434 (N.J.), reconsideration and stay denied, 531 A.2d 1360

(N.J. 1987), cert. denied sub nom. Lincoln Park Nursing & Convales-

cent Home v. Kahn, 483 U.S. 1036 (1987); Quinlan, supra; In re

Storar, 420 N.E. 2d 64 (N.Y.), cert. denied, 454 U.S. 858 (1981);

Weber v. Stony Brook Hosp., 456 N.E. 2d 1186 (N.Y.), cert. denied,

424 U.S. 1026 (1983). Since Cruzan, this Court has denied at least

four more such petitions: In re Baby “K,” 16 F.3d 590 (4th Cir.

1994), cert. denied, 115 S. Ct. 91 (1994); Johnson v. Thompson, 971

F.2d 1487 (10th Cir. 1992), cert. denied, 61 U.S.L.W. 3581 (U.S. Feb.

23, 1993); In re Jane Doe, 583 N.E.2d 1263 (Mass. 1992), cert.

denied sub nom. Doe v. Gross, 112 S. Ct. 1512 (1992); People v.

Kevorkian, 527 N.W.2d 714 (Mich. 1994), cert. denied sub nom.

Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

11

Against this backdrop, this Court’s Cruzan decision

did not state new law or change the way most state courts

evaluated surrogate requests. Rather, Cruzan ratified the

principle that the states are the proper laboratory within

which these issues should be debated and decided; and

that the states’ interests in protecting the lives of its

citizens through the adoption of strict measures to insure

the validity of a previously expressed intent does not

offend the Fourteenth Amendment.

The Michigan Supreme Court recognized that an

individual has the right to refuse unwanted medical treat-

ment, but also noted the state’s interest in protecting life.

Key to its decision was the fact that Martin, while legally

incompetent, is not in pain, terminally ill nor in a persis-

tent vegetative state. Under those facts, the Court stated

that Michigan would not permit withdrawal of life sus-

taining medical treatment on the basis of any test utiliz-

ing objective criteria, including the substituted judgment

test or best interest test. Martin, supra, 450 Mich. at 224,

225.8

The Martin Court decision here follows the analytical

path carved by the several states and Cruzan over the

past twenty years. In its mainstream decision the Court

did not reject the petitioner’s claim that she had the right

* The Court wrote:

We cannot stress too strongly that the complexity and

ramifications of any decision in this area caution

against moving too swiftly or adopting controversial

decision-making standards in cases that do not pre-

sent facts compelling such decision. The right of

informed consent extends only to the decisions this

particular patient has made. Any objective analysis is

not encompassed within the right of informed con-

sent. As we noted at the outset, if we are to err, we

must err in preserving life. Our first step in this area

must be a careful one. Id., 450 Mich. at 225.

12

to assert Martin’s rights for him. The Court instead recog-

nized that her right was not absolute, and rejected the

evidence she presented to support her claim that she was

doing what Martin would have wanted her to do. In so

doing, the Court followed the tenets and evidence stan-

dards tested by the laboratory of the states and ratified in

Cruzan. As argued below, the Court’s factual determina-

tion and legal analysis was consistent with the state

supreme court level decisions in In re Westchester County

Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 531

N.E.2d 607 (N.Y., 1988) (O’Connor), and In re Jobes, supra,

where the courts declined to authorize the removal of life

support systems despite evidence of intent substantially

more developed and compelling than the uncorroborated

evidence presented here.?

Petitioner poses two arguments here. She first claims

that the Michigan Supreme Court unconstitutionally

extended the scope of Cruzan by appending what she

refers to as a “special circumstances” test to the type of

“clear and convincing evidence” test approved by this

Court in Cruzan. Second, she claims for the first time that

the Michigan Supreme Court improperly and unconstitu-

tionally infringed upon Martin’s 14th Amendment rights

by refusing to defer to petitioner’s right as his surrogate

to make treatment decisions. These claims are addressed

below.

Before addressing petitioner’s claims, however, it is

necessary to review this Court’s holding in Cruzan to

identify precisely what was decided. In Cruzan, this

Court was asked on 14th Amendment grounds to reverse

a Missouri Supreme Court decision upholding the need

for strict compliance with a state living will statute in

order for a third party to effectuate the withdrawal of the

? See Cruzan, supra, 285, fn. 11.

13

life support systems of a person incapable of authorizing

the termination herself because she was in a persistent

vegetative state. The case was framed as one pitting the

state’s right to enforce its statutes against the purported

constitutional violation which would occur if a third

party were not permitted to step in and assume the

constitutional rights of the petition subject. Chief Justice

Rehnquist, writing for the majority, rejected this proposi-

tion. He wrote that:

Here again petitioners would seek to turn a

decision which allowed a State to rely on family

decisionmaking into a constitutional require-

ment that the State recognize such decisionmak-

ing. But constitutional law does not work that

way.

No doubt is engendered by anything in this

record but that Nancy Cruzan’s mother and

father are loving and caring parents. If the State

were required by the United States Constitution

to repose a right of “substituted judgment” with

anyone, the Cruzans would surely qualify. But

we do not think the Due Process Clause requires the

State to repose judgment on these matters with any-

one but the patient herself. Close family members

may have a strong feeling — a feeling not at all

ignoble or unworthy, but not entirely disin-

terested, either — that they do not wish to wit-

ness the continuation of the life of a loved one

which they regard as hopeless, meaningless, and

even degrading. Id., at 286, [emphasis added].

After summarizing and discussing the many state

decisions which had addressed this issue, Chief Justice

Rehnquist observed that:

As these cases demonstrate, the common-law

doctrine of informed consent is viewed as gen-

erally encompassing the right of a competent

individual to refuse medical treatment. Beyond

14

that, these decisions demonstrate both similarity

and diversity in their approach to decision that

of what all agree is a perplexing question with

unusually strong moral and ethical overtones.

State courts have available to them for decision

a number of sources - state constitutions, stat-

utes, and common law - which are not available

to us. In this Court, the question is simply and

starkly whether the United States Constitution

prohibits Missouri from choosing the rule of

decision which it did. ... Id., at 277.

The balance between the person’s interest and the

state’s interest likewise was evaluated. The Court noted

Missouri’s claim that it had a legitimate “interest in the

protection and preservation of human life,” Id., at 280,

and agreed that “there can be no gainsaying this inter-

est.” Id. The Court then observed that:

[I]n the contest presented here, a State has more

particular interests at stake. The choice between

life and death is a deeply personal 4ecision of

obvious and overwhelming finality. We believe

Missouri may legitimately seek to safeguard the

personal element of this choice through the

imposition of heightened evidentiary require-

ments. Id., at 281.

Balancing that interest against an individual’s Four-

teenth Amendment liberty interests, the Court explained

that:

It cannot be disputed that the Due Process

Clause protects an interest in life as well as an

interest in refusing life-sustaining medical treat-

ment. Not all incompetent patients will have

loved ones available to serve as surrogate deci-

sionmakers. And even where family members

are present, “[t]here will, of course, be some

unfortunate situations in which family members

will not act to protect a patient.” In re Jobes,

[supra]. A State is entitled to guard against

potential abuses in such situations. Id.

15

The Court then ruled that, indeed, Missouri did have

the right to choose a route or process by which such

claims could be tested by the state within its judicial

system. The Court stated:

We do not think a State is required to remain

neutral in the face of an informed and voluntary

decision by a physically-able adult to starve to

death.

... We believe Missouri may legitimately seek to

safeguard the personal element of this choice

through the imposition of heightened evidenti-

ary requirements. . . . A state is entitled to guard

against potential abuses in such situations. Sim-

ilarly, a State is entitled to consider that a judi-

cial proceeding to make a determination

regarding an incompetent’s wishes may very

well not be an adversarial one . . . Finally, we

think a State may properly decline to make

judgments about the “quality” of life that a par-

ticular individual may enjoy, and simply assert

an unqualified interest in the preservation of

human life to be weighed against the constitu-

tionally protected interest of the individual. /d.,

280-282.1°

10 This holding, that the state may “safeguard the personal

element of this choice” through “heightened evidentiary

requirements,” necessarily included the right to:

... [P]lace an increased risk of erroneous decision on

those seeking to terminate an incompetent individ-

ual’s life-sustaining treatment . . . In sum, we con-

clude that a State may apply a clear and convincing

evidence standard in proceedings where a guardian

seeks to discontinue nutrition and hydration of a per-

son diagnosed to be in a persistent vegetative state.

Id., at 283.

16

As in Cruzan, the test here is whether the Martin

Court’s approach violated Martin’s 14th Amendment

rights. In applying Cruzan to these facts, particularly as it

relates to the state’s interest, it is important to note one

substantial fact difference between the cases. In Cruzan,

Nancy Cruzan was in a persistent vegetative state. Here,

Michael Martin is neither in a persistent vegetative state

nor terminally ill. Moreover, Martin arguably is manifest-

ii , a present desire to live."

Petitioner asserts as her first error that the Michigan

Supreme Court decision, by “requir[ing] additional speci-

ficity in Michael's description of his condition,” ' and its

alleged failure to “provide citizens with adequate notice

of the steps they must take in order to protect their

liberty interests,”'° “unjustifiably extends Cruzan’s hold-

ing and effectively denies Michael his constitutionally

protected interest in being free from invasive and

unwanted medical treatment.”'* In essence, petitioner

claims that the decision “ . . . transforms the clear and

'! At trial and on appeal respondents persistently asserted

the issue of Martin’s present desire to live, as manifested in his

adaptability to his circumstances and living setting, as well as in

his communications to respondents and others. Respondents

argued that, whatever Martin’s previously expressed intentions

while competent might have been, his present desire to live,

however communicated, overrode* or revoked his previously

expressed intent. The trial court and Court of Appeals did not

consider this issue. The Supreme Court declined to review this

issue because it was not necessary given its fact-based disposi-

tion of the case. (See Martin, supra, 450 Mich. at 217, fn. 10.)

12 Petition for Writ of Certiorari, p. 15.

13 Id.

14 Id., at p. 12.

17

convincing evidence standard into one that requires proof

‘beyond all doubt.’ “1°

Petitioner’s claim seeks to elevate a factual deter-

mination with which she disagrees to a constitutional

level. Neither Cruzan nor the cases upon which its anal-

ysis relies countenance such a result. The Martin Court

engaged in much the same type of analysis as did this

Court in Cruzan. In its analysis, the Martin Court con-

cluded that the right to access to a third party surrogate

arises in Michigan by operation of the common law doc-

trine of informed consent.'®

The Court summarized the various state approaches

to surrogate decision making before settling on the purely

subjective standard.'7 Upon adopting the subjective stan-

dard, the Court stated its test to determine whether a

surrogate should be allowed to consent to the removal of

life supporting medical systems:

Given that the right the surrogate is seeking to

effectuate is the incompetent patient’s right to

15 Id., at p. 13.

16 “Because the evidentiary and decision-making standards

appropriate in a given case do not depend on the source of the

right, we need only ground the right in one source.

We agree with the [In re] Rosebush Court [195 Mich. App. 675,

491 N.W.2d 633 (1992)] that a necessary corollary of the com-

mon-law right to informed consent is the right not to consent.

[Citation and footnote omitted.] . . .

Thus, because we find that the common-law doctrine of

informed consent allows a person to refuse life-sustaining treat-

ment, we also decline the invitation to reach the propriety of the

constitutional and statutory issues in this case.” Martin, supra,

450 Mich. at 215-216.

17 “We find that a purely subjective analysis is the most

appropriate standard to apply under the facts of this case.” Id.,

450 Mich. at 221.

18

control his own life, “[t]he question is not what

a reasonable or average person would have cho-

sen to do under the circumstances but what the

particular patient would have done if able to

choose for himself.” [Citing In re Conroy, 98 N.J.

321, 360-361, 486 A.2d 1209 (1985).] The patient's

statements, made while competent, must illus-

trate “a firm and settled commitment to the

termination of life supports under the circum-

stances like those presented. [Citing O'Connor,

supra, 72 N.Y.2d at 517]. 'd., 450 Mich. at 221,

emphasis added.

The Court justified the imposition of this test by

noting that in those cases which allowed a more objective

test, “the patient generally has been comatose or in a

persistent vegetative state, ...” Id., 450 Mich. at 223. The

Court further held that:

In this case, Michael's life and health are not

threatened by infirmities of this nature. Because

he was competent and able to express his wishes

and desires, we decline to move along the con-

tinuum from the subjective standard.'® /d.

The Court's final determination was identifying the

proper standard of proof. Mirroring this Court’s Cruzan

analysis, the Court adopted the clear and convincing

evidence standard,'? noting that:

18 The Court opined that “[e]ven if a test involving objec-

tive criteria were applicable in this case, the objective criteria

would only strengthen our decision that nutrition and hydra-

tion should continue to be provided. . . . By all accounts, Michael

is not experiencing any type of pain that would outweigh any

enjoyment or pleasure he is experiencing.” /d., 450 Mich. at

225-226, fn. 16.

19 The definition appears at footnote 5, supra.

19

Among the factors identified as important

in defining clear and convincing evidence, [cita-

tions omitted] the predominant factor is “a prior

directive in which the patient addresses the situ-

ations in which the patient would prefer that

medical intervention cease.” [Citation omitted]

Id., 450 Mich. at 227.

It is in this context that petitioner’s claim must be

evaluated and ultimately must fail. It is disingenuous for

petitioner now to claim that Michigan’s “specific circum-

stances” test, such as it is, impermissibly expands this

Court’s Cruzan decision. The Michigan Supreme Court

narrowly crafted its analysis to the circumstances with

which it was confronted.”° Its analysis followed this

Court’s lead in Cruzan in every instance, and its state-

ment of the law conforms with Cruzan. Indeed, in Cruzan,

this Court recognized Missouri’s central focus on the

patient’s wishes.2! Michigan took that precise approach,

requiring clear and convincing evidence as to Martin's

pre-accident wishes. It properly found that those wishes

could not be clearly and convincingly determined from

the uncorroborated testimony of the petitioner.

20 “We express no opinion about the proper decision-mak-

ing standard for patients who have never been competent,

patients existing in a persistent vegetative state, patients who

are experiencing great pain or patients who are terminally ill. If

a patient has any of these conditions, or ailments of a similar

nature, a more objective approach may be necessary and appro-

priate.” Id., 450 Mich. at 223, fn. 15.

21 “Missouri requires that evidence of the incompetent’s

wishes as to the withdrawal of treatment be proved by clear and

convincing evidence. The question, then, is whether the United

States Constitution forbids the establishment of this procedural

requirement by the State. We hold that it does not.” Cruzan,

supra, at 280, emphasis added.

20

Petitioner cites three cases to support her assertion

that the Martin Court erred in its factual determination

that Martin’s wishes were not clearly and convincingly

stated. It is sufficient here to note that in all three cited

cases,** the petition subjects either were in a persistent

vegetative state or were terminally ill. This is particularly

important because, as the Martin Court recognized, the

state’s interest in life is elevated if the petition subject is

neither in a persistent vegetative state nor terminally ill.

Whatever weight the courts in those cases chose to give

to the patients’ previously expressed intent necessarily

was tempered by their then-present medical condition.

The Martin Court specifically and emphatically declined

to analyze the Martin case in those terms.?3

The determination of “clear and convincing” evi-

dence cannot be made in a vacuum, without considering

the general principles regarding the weight and suffi-

ciency of evidence — including the relative value of hear-

say; the sufficiency of oral statements of intent when

processes exist to integrate intent into a written instru-

ment; the weight of the uncorroborated testimony of an

interested party; and the strength of a factual finding

which depends upon the testimony of a single witness.

Fortunately, case law from termination of life support

cases in other jurisdictions provides guidance on what

type of proof rises to the level of “clear and convincing”

evidence. In Cruzan, the Missouri Supreme Court found

that statements similar to those claimed in the present

case - although made to a totally disinterested party -

22 Elbaum v. Grace Plaza, Inc., 544 N.Y.2d 840 (N.Y. App. Div.

1989) (petition subject in persistent vegetative state); In re Tavel,

661 A.2d 1061 (Del. 1995) (92 year old petition subject terminally

ill); In re Swan, 569 A.2d 1202 (Me. 1990) (petition subject in

persistent vegetative state).

23 See footnote 20, supra.

21

were insufficient to constitute clear and convincing evi-

dence. To rely upon evidence such as Cruzan’s statement

that she “would not want to continue her present exis-

tence without hope as it is,” the Missouri court expressed

concern about the general nature of her statements,

which she made in response to other people’s medical

condition and treatment, finding that they closely resem-

ble the types of evidence courts have chasacterized as

unreliable. Cruzan v. Harmon, supra, 760 S.W.2d at 424.

This Court affirmed, saying that Missouri committed no

“constitutional error in reaching the conclusion that it

did.” Cruzan, at 285.

Further indications of the high degree of certainty

required are found in O'Connor, supra, where New York’s

highest court rejected the numerous statements O’Connor

made to three persons over a twenty-year period that she

did not want to go on living if she could not “take care of

herself and make her own decisions” and “would never

want any sort of intervention [or] any sort of life support

systems to maintain or prolong her life.” Witnesses also

ascribed statements to O’Connor - similar to those beliefs

here ascribed to Martin — that she hated hospitals and

never wished to be in one again, saying “I would never

want to lose my dignity.” Id., at 531 N.E.2d 610-11.

In reversing lower court decisions ordering that

intravenous feeding be discontinued, the Court con-

trasted O’Connor’s statements with those made by a per-

son who exhibits the care of putting her desires in

writing, and with those oral statements at issue in Eichnar

v. Dillon, 52 N.Y.2d 363; 420 N.E.2d 64 (1981), in which the

person carefully reflected on the use of a ventilator

should he enter a persistent vegetative state. O’Connor’s

statements, by contrast, were of a type made by many

people, especially older people, and the court was con-

cerned about the policy issues raised by relying upon

22

such statements by a person with a non-terminal condi-

tion:

[I]f such statements were routinely held to be

clear and convincing proof of a general intent to

decline all medical treatment once incompe-

tency sets in, few nursing home patients would

ever receive life-sustaining medical treatment in

the future. Supra, at 614.

In Matter of Hughes, 259 N.J. Super. 193, 661 A.2d 1148

(N.J. Super. AD, 1992), the subject, a Jehovah's Witness,

had, just prior to a scheduled operation, specifically

advised the hospital and her doctor in writing not to

administer a blood transfusion. She also expressed this

orally to three family members and the doctor. Although

she told five distinct people her specific intent about a

specific procedure, and put her intent in writing, and

despite having taken such steps contemporaneous to the

surgery, these expressions did not constitute clear and

convincing evidence. Rather, the court found that the

evidence did not show that the patient had made this

decision with “full knowledge of the ramifications,”

including the possibility of complications necessitating a

transfusion to save her life.

In the present case, Michael Martin’s purported state-

ments are not markedly different than Nancy Cruzan’s:

neither statement dealt “in terms with withdrawal of

medical treatment or of hydration and nutrition.” Id. at

285.24

The difficulty of adequately projecs:ng ail future

types of care and treatment does not, as petitioner claims,

justify a loosening of evidentiary standards so that com-

mon statements such as “no machines” becomes “no food

24 This Court in Cruzan similarly found that the Cruzan

facts were less persuasive than the facts in O'Connor and Jobes.

See Id., at 285, fn. 11.

23

or water,” and “not as a vegetable” becomes “not as a

conscious and aware but seriously injured person.” If

such is deemed to be sufficient to encompass all future

variables, our nursing homes may soon be empty. The

difficulty of anticipating future events, rather than creat-

ing carte blanche for family members and medical per-

sonnel, dictates that the approach to future care mirror

the standard applied to “informed consent” for present

care. If a person who currerily is competent to exercise

his or her decision making capacity must consider all

possible treatments and ramifications, then it also is rea-

sonable to insist that a person seeking to establish guide-

lines for his or her future care do the same.*°

Petitioner’s notice claim, to, is without merit. At the

time of Martin’s accident, the state of the law was not yet

clear as to whether his wishes could have been honored

even if he had been specific as to his non-persistent

vegetative existence on a feeding tube. He had the option

and opportunity to reduce his wishes to writing, again

with no clearly established legal right in Michigan to

have those wishes implemented. Martin’s liberty interests

were not clearly defined at the time of his accident.’° It is

illogical to say that a person who has uncertain legal

25 It should be noted that the Martin Court did not rule out

the use of objective criteria in a situation involving a person

who is vegetative, terminally ill, or in great pain. See footnote 20

supra.

26 Michigan’s Patient Advocate Act, supra, passed in 1990,

would allow a properly designated third person to execute a

patient’s treatment decisions if the patient were unable to do so.

As petitioner notes, “Michigan still does not have any statute

that explicitly recognizes living wills.” Petitioner’s Petition for

Writ of Certiorari, p. 17, fn. 9. It should also be noted, however,

that the Patient Advocate Act embraces the content of a living

will statute.

24

rights, if indeed he has any legal rights in the matter at

all, is somehow denied notice of the steps to take to

preserve those uncertain, and possibly non-existent rights

when a court, several years later, finally defines the scope

of those rights for him and all Michigan citizens.

The Michigan Supreme Court constitutionally deter-

mined that Michael Martin’s previously expressed wishes

did not clearly and convincingly demonstrate that he

would want petitioner, or any other person, withdrawing

his feeding tube in his present physical situation. Further,

Martin has demonstrated a current desire to live. Peti-

tioner’s Petition for Writ of Certiorari on this issue

should be denied, and respondents so request this Court.

Il.

Petitioner, for the first time in this case’s nearly four-

year history, raises an issue of purported constitutional

significance. Specifically, the petitioner claims that this

case raises a question this Court left open in Cruzan:

Whether a State has a constitutional obligation

to “defer to the decision of a surrogate if compe-

tent and probative evidence established that the

patient herself had expressed a desire that the

decision to terminate life-sustaining treatment

be made for her by that individual.”?7

Petitioner, in order to comply with Sur. Cr. R.

14.1(h)?8, which requires a petitioner to “specify the stage

27 Petition for Writ of Certiorari, p. 16, quoting Cruzan,

supra, at 287, fn. 12.

28 Sup. Cr. R. 14.1(h) reads in its entirety as follows:

If review of a judgment of a state court is sought, the

statement of the case shall also specify the state in the

proceedings, both in the court of first instance and in

the appellate courts, at which the federal questions

Core ine a eee om a

25

in the proceedings, both in the court of first instance and

in the appellate courts” where the federal or constitu-

tional question was raised, claims in a footnote that:

While [Petitioner] Mary Martin’s brief did not

specifically cite footnote 12 of the Cruzan opin-

ion (parenthetical omitted), its broad reliance on

that case and its repeated assertion and defense

of Mary as the proper guardian and the person

Michael entrusted to ensure that he not be

forced to endure life-sustaining medical treat-

ment once his prognosis became hopeless,

placed the issue noted in footnote 12 squarely

before the Michigan Supreme Court.?9

Respondents first contend that petitioner failed in

any instance to place this issue squarely before any Mich-

igan court, and that therefore petitioner has failed to

preserve the issue for appeal to this Court. Further, peti-

tioner has failed to comply with Sup. Cr. R. 14.1(h).

“Ordinarily, this Court does not decide questions not

raised or resolved in the lower court.” Youakim v. Miller,

425 U.S. 231, 234 (1976) (per curiam). Here, petitioner’s

comment tacitly admits that the precise question she

sought to be reviewed were raised; the method or

manner of raising them and the way in which they

were passed upon by those courts: and such pertinent

quetation of specific portions of the record or sum-

mary thereof, with specific reference to the places in

the record where the matter appears (e.g., ruling on

exception, portion of court’s charge and exception

thereto, assignment of errors) as will show that the

federal question was timely and properly raised so as

to give this Court jurisdiction to review the judgment

on a writ of certiorari. When the portions of the

record relied upon under this subparagraph are volu-

minous, they shall be included in the appendix

referred to in subparagraph .1(k) of this Rule.

29 Petitioner’s Petition for Writ of Certiorari, p. 8, fn. 6.

26

seeks to ».ace before this Court has not been litigated

below. Nor can it be said that the question was implicitly

considered and decided within the other issues consid-

ered in the courts below.*° The Cruzan Court, in preserv-

ing the question, arguably anticipated a situation where

the surrogate’s appointment and authority — with specific

powers to decide life and death issues for the patient

whether or not the patient had previously expressed

treatment opinions — was clearly and expressly stated, so

that the appointment and authority themselves were not

in dispute.

For example, given the skepticism this Court

expressed in Cruzan regarding unwritten hearsay evi-

dence, it very well could be that such evidence purport-

ing to establish the designation of a surrogate would be

viewed as similarly problematic. Since the same compel-

ling state interests would apply to a decision to withdraw

” Indeed, for the question to be ripe, several specific issues

should have been argued and decided by the lower courts.

These issues would at least include: 1) whether Martin appoin-

ted petitioner as his “surrogate;” 2) what standard of proof

would be required to determine that Martin did, in fact, appoint

petitioner as his “surrogate;” 3) whether this purported desig-

nation of a surrogate was corroborated by other, uninterested

parties, including the friends with whom Martin had discussed

his views; 4) whether a “surrogate” appointment as contem-

plated by the Cruzan footnote would require that the appoint-

ment itself be in a writing similar to the writings required to

validate wills and transfers of property; and 5) whether Mar-

tin’s post-injury acceptance of his situation and his expressed

desire to live would operate to revoke such an appointment,

assuming an appointment had been made. Michigan’s policy

interest in preserving life, as manifested in its Patient Advocacy

Act, supra, which had taken effect prior to the hearings in this

case, although not directly applicable to this case, also should

have been factored into any Michigan court’s determination of

whether Martin had named petitioner as his surrogate.

-

27

life supporting medical equipment made by a surrogate,

it is difficult to see how a lesser evidentiary standard

would be justified. Further, the designation-of-a-surro-

gate issue raises additional state interests, such as the

state’s parens patriae interest in protecting incompetent

persons from abuse and overreaching, so that an even

stricter standard regarding the quality of evidence

required would be in order.

Petitioner’s failure to raise this issue in any of the

several layers of proceedings below deprived the Michi-

gan courts of all opportunity to review it. This Court and

respondents likewise are denied the chance to review and

debate the question to the depth and degree of sophistica-

tion anticipated by this Court, and required by jurispru-

dence to insure the quality and accuracy of the result. For

these reasons alone, petitioner’s petition to appeal this

issue should be denied.

Even if the petitioner did properly raise and preserve

the issue below, this Court still should not hear it. Chief

Justice Rehnquist, in Cruzan, anticipated the argument

the petitioner really makes here, that she should be able

to decide Martin’s course because she is his wife. He

observed that:

Petitioners alternatively contend that Missouri

must accept the “substituted judgment” of close

family members even in the absence of substan-

tial proof that their views reflect the views of

the patient. They rely primarily upon our deci-

sions in Michael H. v. Gerald D., 491 U.S. 110

(1989), and Parham v. J.R., 442 U.S. 584 (1979).

But we do not think these cases support their

claim. In Michael H., we upheld the constitu-

tionality of California’s favored treatment of tra-

ditional family relationships; such a holding

may not be turned around into a constitutional

28

requirement that a State must recognize the pri-

macy of those relationships in a situation like

this. And in Parham, where the patient was a

minor, we also upheld the constitutionality of a

state scheme in which parents made certain

decisions for mentally ill minors. Here again

petitioners would seek to turn a decision which

allowed a State to rely on family decisionmak-

ing into a constitutional requirement that the

State recognize such decisionmaking. But consti-

tutional law does not work that way. Id.,

285-286, emphasis in original.

Likewise, petitioner’s reliance on Planned Parenthood

v. Casey, 112 S. Ct. 2791, 2804 (1992) is misplaced. In

Casey, this Court wrestled with principles which are pre-

sent here. The central issue in Casey, as here, was what

power or interest, if any, a state had in regulating activity

that directly impacted on an individual’s fundamental

liberty interests. A careful reading of Casey can only lead

to one conclusion — a state’s interest in the regulation

increases as the interest in life [in Casey, the viability of

the fetus] increases. The Casey Court noted that:

We conclude that the basic decision in Roe was

based on a constitutional analysis which we can-

not now repudiate. The woman’s liberty is not

so unlimited, however, that from the outset the

State cannot show its concern for the life of the

unborn, and at a later point in fetal develop-

ment the State’s interest in life has sufficient

force so that the right of the woman to terminate

the pregnancy can be restricted. Id., 112 S. Ct. at

2816.

That same policy applies here. The state’s interest in

preserving life increases precisely because Martin is not

terminally ill, comatose, or in pain, and he is expressing a

current will to live. The Martin Court properly concluded

that Martin’s statements to petitioner did not rise to the

ee ee

29

level of clear and convincing proof of what, under the

informed consent doctrine, would have been his “intent”

given his present condition.*!

Petitioner asserts that those same insufficient state-

ments now constitute his appointment of her as his “sur-

rogate,” and argue that she therefore should be

authorized under constitutional principles to exercise her

own judgment, and to consent to the termination of his

life. This claim is diametrically opposed to the elevated

state interest in life found in Casey, given Martin’s pre-

sent physical and mental condition.“ Were petitioner to

prevail in her claim, the effect would be that Martin's

constitutionally protected liberty interest in life itself

would be extinguished because the state’s ability to assert

its elevated interest in the preservation of life would be

eliminated.** This outcome must be rejected.

*! Petitioner's reliance on Casey also is misplaced in light of

Casey's call to consult the concept of ordered liberty, as demon

strated by the traditions of the states. In this regard, no state

common law decision has authorized termination of life sup

porting equipment for an incompetent person who is not term:

nally ill, in a persistent vegetative state, or in intractable pain

Further, in recent years the states have enacted living will and

durable power of attorney statutes, none of which authorized

termination of life supporting equipment for an individual wh:

is not terminally ill or in a persistent vegetative state absent a

writing.

2 The state’s interest also is magnified here because of

Martin’s current liberty interest, as expressed by the evident

manifestation of a current desire to live, and because of the

inadequacy of the evidence upon which petitioner's prin

legal assertion rested and failed

3 Indeed, if the petitioner’s argument were successful, the

whole legal focus would shift from the expressed interests

subject of the petition to whether the “surrogate” was

appointed as the surrogate. If a surrogate has the authority

CONCLUSION