Opposition Brief — Easton v. Maready

No. 01-1735 JUN oe 2000

ae ne ie meer eee

IN THE

Supreme Court of the United States ~~~

|

j

TOM EASTON and ELENA EASTON,

and as successors in interest of decedent

MARGARETHA MARY WINCHESTER,

Petitioners,

v.

JIM MAREADY, DEL NORTE SHERIFF;

DEPUTY SHERIFF THOMAS HOCKABOUT;

DEPUTY SHERIFF GERALD HARWOOD;

DEPUTY SHERIFF GARTH GOODRICH;

STEPHAN BROHMER, DIRECTOR DEL NORTE ADULT

PROTECTIVE SERVICES; and DOES ONE through TEN,

inclusive, each in their individual and official capacity,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEAL OF THE STATE OF CALIFORNIA

BRIEF IN OPPOSITION

JOHN M. VRIEZE

Counsel of Record

WILLIAM F. MITCHELL

MITCHELL, Brisso,

DELANEY & VRIEZE

Attorneys for Respondents

814 Seventh Street

P.O. Drawer 1008

Eureka, CA 95502

(707) 443-5643

174680 cel

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... il

I i ds dd ee a a O% Oe Oe l

Reasons for Denying the Writ.................. 4

A. The Issues Presented To This Court Were Not

I a ys 4

B. The California Elder Abuse Act and the

Decision Below are Consistent with the

Fourth Amendment. ............0cccc0e- 8

C. The California Elder Abuse Act is Consistent

with 42 U.S.C. § 1395Scc. . cee e ee eeseeess iZ

CNR RRR REN a re EN ean LE NR a Re 13

il

TABLE OF CITED AUTHORITIES

Cases: act

Campbell v. Louisiana, 423 U.S. 392 (1998) ..... 5,7

Cardinale v. Louisiana, 394 U.S. 437 (1969) ..... 5,6

Crowell v. Randell, 10 Pet. 368 (1836) .......... 5

Delaney v. Baker, 20 Cal. 4th 23 (1999) ......... 8

Easton v. Sutter Coast Hospital, 80 Cal. App. 4th

485 (2000), cert. denied, 531 U.S. 1084,

148 L. Ed. 2d 686, 121 S. Ct. 790 (2001) ..... 3, 9, 12

_ Fuller v. Oregon, 417 U.S. 40 (1974) ........... 7

Illinois v. Gates, 462 U.S. 213 (1983) ........... 5

Johnson v. State, 386 So. 2d 302 (Fla. App. 1980) ... 11

Johnson y. United States, 333 U.S. 10 (1948) ..... 10

Mann vy. Cannon, 731 F.2d 54 (1st Cir. 1984) ..... 11

Michigan y. Tyler, 436 U.S. 499 (1978) .......... 10

Mincey v. Arizona, 437 U.S. 385 (1978) ......... 10

People v. Ray, 21 Cal. 4th 464 (1999) ........... 11

State v. Butler, 676 S.W.2d 890 (Mo. 1984) ...... 11

iil

Cited Authorities

Page

State v. Carlson, 548 N.W.2d 138 (Iowa 1996) .... 11

State v. Mackins, 47 N.C. App. 168, 266 S.E.2d 694

ES ees ee ery Pe ee reer 11

State v. Max, 263 N.W.2d 685 (S.D. 1978) ....... 11

Street v. New York, 394 U.S. 476 (1969) ......... 7

United States v. Barone, 330 F.2d 543 (2d Cir.

ear oo va hea eae anes 11

United States v. Brand, 556 F.2d 1312 (Sth Cir. —

ee nd <a haa bie ak ooo ok oe 11

United States v. Echegoyen, 799 F.2d 1271 (1986) ... 11

United States v. Gillenwaters, 890 F.2d 679 (4th Cir.

EN es Daas ok s Ub 60668 ba e4Ae ON Oe 11

United States v. Green, 474 F.2d 1385 (5th Cir

a eniiia ss Satoh tee cac ele oe Reb awees 11

United States v. Hogue, 283 F. Supp. 846 (N.D. Ga

Ce ee aL es ieee cee bok 11

United States v. Hughes, 993 F.2d 1313 (7th Cir

SE CR seUely ceed shee bee Ki ke ee ke Oe a 11

United States v. Jones, 635 F.2d 1357 (8th Cir.

EE tiene tice kkvewaeeks SRE Up ar nas, eanae eee 11

iv

Cited Authorities

Page

United States v. Martin, 781 F.2d 671 (9th Cir.

DT Gok once we hand eRe A GaSe ek A 11

United States v. Reid, 69 F.3d 1109 (11th Cir. 1995)

Si ahaa eaten Chek baad KDE enews 10

United States v. Riccio, 726 F.2d 638 (10th Cir.

DE 2 ndknaw adh eee aden en Caner es 11

United States v. Robertson, 606 F.2d 853 (9th Cir.

SEE coh vkcewehen sad vaba chee eee kako 6 10

United States v. Searle, 974 F. Supp. 1433 (M.D. Fla.

ONIN «0.3 as ed ars esta he a a Sc Aaa oe 11

Whitney v. California, 274 U.S. 357 (1927) ...... 5

United States Constitution:

Fourth Amendment ................... 2, 4, 8, 10, 12

Statutes:

Be Chas OE oo bs Cod Fu Kenn e was eee eee 5

ie Ses dan e-kue ne Cees nne eedeacewe 13

ih tom Be as GF) rere 4

MUSE AO Be oe ees 2,4

Vv

Cited Authorities

Page

California Welfare and Institutions Code § 15600 ... 8

California Welfare and Institutions Code § 1561 0.07

ous ola ek he ed eae ae eee ee 9

California Welfare and Institutions Code § 15610.30

ls ae eed beak ee ae ee ene 9

California Welfare and Institutions Code § 15610.43

Prerrrr rer re. OPT ror TT rr errr rT 9

California Welfare and Institutions Code § 15610.57

Pe PP errr eer tr rr se 9

California Welfare and Institutions Code § 15610.63

= be ee feo nek eee ee ee 9

California Welfare and Institutions Code § 15634 ... 3,9

California Welfare and Institutions Code § 15634(b)

a gdueewebebesats een hieueeaegen 9,10, 12

Rule:

United States Supreme Court Rule 14 .......----: 6, 7

Other Authority:

Journal of Criminal Law and Criminology,

Winter 1999 2... ccc cc cccnccecnccccecesoes 11

l

STATEMENT OF THE CASE

Margaretha Winchester resided at her home in Crescent City

with her son, plaintiff Tom Easton (Easton), and Mr. Easton’s

wife, Elena Easton. She had suffered from dementia since 1998.

On September 26, 1998, the 88-year-old Winchester collapsed

outside the residence after returning home from a walk.

Winchester’s physical and mental condition declined

rapidly after this incident, and she was treated at a local

hospital on October 13. She was prescribed medication for a

urinary tract infection and discharged.

Once home, a home healthcare worker (Don Morneau)

monitored her condition, with Easton’s consent. On October

19, the home healthcare worker discovered that Easton had

not filled the prescription to treat his mother’s infection.

The next day, Morneau strongly urged Easton to take Winchester

back to the hospital for treatment of the infection, an easily

treatable medical condition. Easton refused and indicated he

did not want to have medical personnel attend to her. At this

time, Easton did not have a power of attorney to make health

care decisions for Winchester and he had not been appointed

her guardian. Morneau then told Easton it was his duty to

report possible elder abuse.

Morneau then reported the refusal to allow medical

care to Winchester’s treating physician (Dr. Sara Kossuth).

Dr. Kossuth then called 911 and reported that Easton would

not allow medical personnel to treat Winchester’s infection,

also suggesting that his neglect constituted elder abuse.

The physician also reported that Winchester’s infection

posed a risk of falling blood pressure, which could be

2

life-threatening, and requested that law enforcement personnel

intervene and assist in having Winchester brought to the

hospital.’

Three Del Norte County sheriff’s deputies were dispatched

to the Easton residence in response to the physician’s request.

A deputy (Deputy Hockabout) informed Easton that they had

been dispatched to assist in having Winchester taken to the

hospital for necessary medical care. Hockabout then entered

the house, followed by an emergency medical technician (EMT)

from Del Norte Ambulance. The EMT reported that

Winchester’s blood pressure was very low. Deputy Hockabout

observed that Winchester appeared in very poor health. She was

completely unresponsive to his questions. At all times her eyes

were open. She stared directly at him without any response.

Deputy Hockabout then concluded that Winchester was severely

disabled — both mentally and physically. She appeared

malnourished, weak and frail. Deputy Hockabout determined

that Winchester was unable to understand the risks to her health,

and allowed medical personnel to transport her to the hospital

~ by ambulance. ;

Petitioners filed suit in the Del Norte County Superior

Court, alleging violation of 42 U.S.C. § 1983 based on the

Eastons’ Fourth Amendment rights. The complaint also alleged

that the County violated California’s Elder Abuse Act by failing

to obtain a search warrant before entering the Easton’s home.

1. In a memo of a prior conference call between Morneau,

Dr. Kossuth and Chris Van Camp, a social service worker, it is noted,

“Dr. Kossuth wants patient in ER for assessment ‘whatever it takes.””

Fh tte

“3

The state trial court granted respondents’ motion for

summary judgment and petitioners appealed. In an unpublished

opinion? (“Easton IT’’), the California Court of Appeal affirmed

the trial court’s granting of summary judgment, based on an

immunity provision in the Elder Abuse Act, previously addressed

by the court in Easton v. Sutter Coast Hospital, 80 Cal. App.

4th 485 (2000), cert. denied, 531 U.S. 1084, 148 L. Ed. 2d

686, 121 S. Ct. 790 (2001) (“Easton I’’). Both Easton I and

Easton II are based on the same underlying incident, i.e.,

the removal of Winchester from the Easton residence in order

to render medical treatment.

In Easton I, the appellate court construed California Welfare

and Institutions Code § 15634 (a provision of the Elder Abuse

Act) toconfer absolute immunity for persons who provide access

to victims of suspected abuse. /d., 80 Cal. App. 4th at 495-496.

Under the facts presented in this case, the court in Easton II

concluded that the same statute “provides absolute immunity

to the sheriff’s deputies who entered the home without a

warrant in order to allow [ ] paramedics to remove Winchester.”

Easton IT, 2001 WL 1511263 (Cal. App. 1 Dist.), *3.

Petitioners then filed a petition for review with the

California Supreme Court, which was denied.

2. Acopy of the decision is attached as an appendix to the petition

for writ of certiorari, and is available on Westlaw (2001 WL 1511263).

4

REASONS FOR DENYING THE WRIT

A. The Issues Presented To This Court Were Not Raised

Below.

Petitioners present two issues. First, they claim California’s

Elder Abuse Act is facially unconstitutional under the Fourth

Amendment of the United States Constitution. Second,

petitioners (apparently) assert that this legislation conflicts

with 42 U.S.C. § 1395cc(f)(1)(A)(i), a provision of the Patient

Self Determination Act.’

Neither of these issues were raised or addressed in the

proceeding below.

The complaint alleged respondents violated § 1983 and the

Elder Abuse Act, based on the entry into petitioners’ residence

without a search warrant. Petitioners did not challenge the

constitutionality of the Elder Abuse Act, nor did they allege

that the Act conflicted with the so-called Patient Self

Determination Act.

Likewise, petitioners did not question the validity of the

Elder Abuse Act in their brief filed in the California Court of

Appeal or their petition for review to the California Supreme

Court. To the contrary, they argued that “California law is in

accord with federal law” with respect to the right of patients to

refuse medical treatment.‘

3. The second issue is articulated by petitioners as follows:

“May California’s Elder Abuse Act legislate away an elder patient’s

right to refuse unwanted medical treatment under the Patient Self

Determination Act, 42 U.S.C. § 1395cc(f)(1)(A)(@) without violating

her civil rights under 42 U.S.C. § 1983?”

4. Petitioners’ opening brief, filed in the California Court of

Appeal, pp. 38-39.

5

The failure of petitioners to raise either of the issues in

the proceedings below is reflected in the Court of Appeal’s

decision in Easton II. That is, a constitutional challenge to

California’s Elder Abuse Act under federal law was not

addressed in that decision, nor does the court indicate that

the issue was raised by petitioners. Rather, the issue before

the appellate court was whether or not California’s Elder

Abuse Act provided immunity for respondents.°

Petitioners ignore the well-established rule that, on

petition for certiorari from state court decisions, this Court

does not decide federal issues “not pressed or passed upon

below.” Campbell v. Louisiana, 423 U.S. 392, 401 (1998);

Illinois v. Gates, 462 U.S. 213, 218-220 (1983); Cardinale

v. Louisiana, 394 U.S. 437, 439 (1969); Crowell v. Randell,

10 Pet. 368, 391-398 (1836). Indeed, the Court has opined

that, under 28 U.S.C. § 1257,° it lacks jurisdiction to even

consider federal questions not raised or decided by the highest

state court below. Crowell, 10 Pet. at 391; Whitney v.

California, 274 U.S. 357, 360 (1927); Cardinale, 39 U.S. at

438 (“It was very early established that the Court will not

decide federal constitutional issues raised here for the first

time on review of State court decisions.”).

5. The appellate decision also mentioned, in passing, petitioners’

claim that the trial court violated their constitutional right to a jury

trial by granting summary judgment 2001 WL 1511263*4.

6. Section 1257 provides that:

[FJinal judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows: ... (3) by

writ of certiorari, . .. where any title, right, privilege or

immunity is specially set-up or claimed under the

Constitution, treaties or statutes of. . . the United States.

6

The policies giving rise to the so-called “not pressed or

passed upon below” rule were explained by the Court in

Cardinale v. Louisiana, supra:

In addition to the question of jurisdiction arising

under the statute controlling our power to review

final judgments of state courts, 28 U.S.C. § 1257,

there are sound reasons for this. Questions not raised

below are those on which the record is very likely to

be inadequate, since it certainly was not compiled

with those questions in mind. And in a federal system

it is important that state courts be given the first

opportunity to consider the applicability of state

statutes in light of constitutional challenge, since the

statutes may be construed in a way which saves their

constitutionally. Or the issue may be blocked by an

adequate state ground. Even though States are not

free to avoid constitutional issues on inadequate state

grounds. [citation omitted] They should be given the

first opportunity to consider them.’

Supreme Court Rule 14 requires that a petition for

review of a state court judgment include a statement

specifying

... the stage and the proceedings, both in the court

of first instance and in the appellate courts, when

the federal question sought to be reviewed were

raised; the method or manner of raising them and

the way in which they were passed on by those

courts; and pertinent quotations of specific

portions of the record or summary thereof, with

7. 394 US. at 439.

7

specific references to the places in the record

where the matter appears ... so as to show that

the federal question was timely and properly raised

and that this Court has jurisdiction to review the

judgment on a writ of certiorari.

Consistent with Supreme Court Rule 14, courts have held

that the petitioner has the burden of demonstrating to this

Court that the federal questions were raised or decided by

the state court below. Street v. New York, 394 U.S. 476, 482

(1969); Campbell, 523 U.S. at 401; Fuller v. Oregon, 417

U.S. 40, 50 n.11 (1974). This Court has also stated that, when

“the highest 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 affirmatively show the contrary.” Street, 394

U.S. at 582 (emphasis added).

Petitioners have utterly failed to carry their burden to

provide a record to this Court showing that the validity of

California’s Elder Abuse Act was challenged on federal

constitutional or federal statutory grounds in the proceedings

below. Indeed, as discussed above, no such showing can be

made, as the federal questions are now raised for the first time.

Accordingly, the petition for a writ of certiorari must be

denied. |

B. The California Elder Abuse Act and the Decision

Below are Consistent with the Fourth Amendment.

Even assuming arguendo that the federal issues presented

here were raised or decided below, review by this Court would

8

not be warranted.

California’s Elder Abuse Act, as amended in 1991, is

designed to protect the elderly and dependant persons from

abuse, neglect, or abandonment. Delaney v. Baker, 20 Cal.

4th 23, 42 (1999), citing California Welfare and Institutions

Code § 15600.*

8. Section 15600, which sets forth the legislative declarations

and intent of the Elder Abuse Act provides, inter alia:

The Legislature recognizes that elders and dependent

adults may be subjected to abuse, neglect, or

abandonment and that this state has a responsibility to

protect these persons ... The Legislature further

recognizes that a significant number of these persons

have developmental disabilities and that mental and

verbal limitations often leave them vulnerable to abuse

and incapable of asking for help and protection ...

The Legislature recognizes that most elders and

dependent adults who are at the greatest risk of abuse,

neglect, or abandonment by their families or caretakers

suffer physical impairments and other poor health that

place them in a dependent and vulnerable position .. .

The Legislature declares that this state shall foster and

promote community services for the economic, social,

and personal well-being of its citizens in order to

protect those persons described in this section ...

The Legislature further declares that uniform state

guidelines, which specify when county adult protective

(Cont’d)

9

The Act provides that any local law enforcement agency

employee who provides an agency reporting suspected elder

abuse’ with access to the victim of a known or suspected

instance of elder or dependant adult abuse shall not incur

civil or criminal liability as a result of providing that access.

§ 15634(b). In Easton I, the State appellate court determined

that the immunity set forth in § 15634, provided absolute

immunity from claims of trespass and false imprisonment made

by the petitioners against medical personnel. 80 Cal. App. 4th

at 495-496. In Easton II, the court found, under the facts in

this case, that this immunity protection extended to the

respondent law enforcement officers, who entered without a

(Cont’d)

service agencies are to investigate allegations of abuse

of elders and dependent adults and the appropriate role

of local law enforcement is necessary in order to ensure

that a minimum level of protection is provided to elders

and dependent adults in each county . . . Therefore, it is

the intent of the Legislature in enacting this chapter to

provide that adult protective services agencies, local

long-term care ombudsman programs, and local law

enforcement agencies shall receive referrals or

complaints from public or private agencies, from any

mandated reporter submitting reports pursuant to Section

15630, or from any other source having reasonable cause

to know that the welfare of an elder or dependent adult

is endangered, and shall take any actions considered

necessary to protect the elder or dependent adult and

correct the situation and ensure the individual’s safety.

9. Elder abuse can arise a number of ways — physical abuse,

neglect, abandonment, isolation, financial abuse, deprivation by a

care custodian of necessary goods or services, or other treatment

that results in physical harm, pain, or mental suffering. (Welfare and

Institutions Code §§ 15610.07, 15610.30, 15610.43, 15610.57, and

15610.63.)

10

warrant in order to allow medical personnel to remove

Winchester.

Petitioners argue that the immunity set forth in § 15634(b)

— as written and as applied by the court in Easton I] —

“unconstitutionally deprives elder citizens of their right under

the Fourth Amendment to be safe and secure in their own

homes.” Plaintiffs further assert that the appellate court’s

interpretation of § 15634(b) “appears an absurd reading in light

of Fourth Amendment jurisprudence.”

Contrary to petitioners’ argument, courts have consistently

held that warrantless entry into a home does not violate the

Fourth Amendment, where the entry is made necessary by

exigent circumstances. Michigan v. Tyler, 436 U.S. 499, 509

(1978); United States v. Robertson, 606 F.2d 853, 859 (9th Cir.

1979); Johnson v. United States, 333 U.S. 10, 14-15 (1948);

United States v. Reid, 69 F.3d 1109, 1113-1114 (11th Cir. 1995).

In Mincey v. Arizona, 437 U.S. 385, 392 (1978) this Court

recognized that the most urgent emergency situation excusing

police compliance with the warrant requirement is the need to

protect or preserve life:

Numerous state and federal cases have recognized

that the Fourth Amendment does not bar police

officers from making warrantless entries and

searches when they reasonably believe that

a person within is in need of immediate aid ...

The need to protect and preserve life or avoid serious

injury is justification for what would be otherwise

illegal absent and exigency or emergency.

Following Mincey v. Arizona, both federal and state courts

have consistently upheld warrantless emergency entries and

—_—_-s

ENS me ERIM 5 Baha Pde tg

11

searches based on endangerment to life. See, e.g., People v.

Ray, 21 Cal. 4th 464, 470 (1999) (no warrant required when

law enforcement rendering “emergency aid”); United States

v. Echegoyen, 799 F.2d 1271 (1986) (/d.); United States v.

Hughes, 993 F.2d 1313 (7th Cir. 1993) (report of woman

and child in danger in crack house); United States v.

Gillenwaters, 890 F.2d 679 (4th Cir. 1989) (stabbing victim);

United States v. Martin, 781 F.2d 671 (9th Cir. 1985)

(explosion in apartment); Mann v. Cannon, 731 F.2d 54 (lst

Cir. 1984) (open access to controlled substances by children);

United States v. Riccio, 726 F.2d 638 (10th Cir. 1984)

(medical aid to defendant shot by police); United States v.

Jones, 635 F.2d 1357 (8th Cir. 1980) (report of gunshots);

United States v. Barone, 330 F.2d 543 (2d Cir. 1964) (screams

in the night); United States v. Searle, 974 F. Supp. 1433 (M.D.

Fla. 1975) (report of gunshots); United States v. Hogue, 283

F. Supp. 846 (N.D. Ga. 1968) (report of dead body); Johnson

v. State, 386 So. 2d 302 (Fla. App. 1980) (report of dead

body); State v. Carlson, 548 N.W.2d 138 (Iowa 1996)

(missing person); State v. Butler, 676 S.W.2d 890 (Mo. 1984)

(en banc) (gunshot victim); State v. Mackins, 47 N.C. App.

168, 266 S.E.2d 694 (1980) (gunshots); State v. Max, 263

N.W.2d 685 (S.D. 1978) (gunshots). United States v. Brand,

556 F.2d 1312 (5th Cir. 1977) (noting defendant’s concession

that police officer who assisted ambulance attendants with

medical emergency legally entered home); United States v.

Green, 474 F.2d 1385 (5th Cir. 1973) (indicating deputy fire

marshal could validly search apartment to determine cause

of fire where ascertaining cause was necessary to assure fire

was completely extinguished); See generally, “Emergency

Circumstances, Police Responses, And Fourth Amendment

Restrictions,” Journal of Criminal Law and Criminology,

Winter 1999 pp. 439-441 (collecting cases involving

warrantless entry when person in need of medical treatment).

12

In short, providing immunity to law enforcement officers

entering a home without a warrant in order to assist medical

personnel rendering assistance to the victim of a known

or suspected instance of elder or dependant adult abuse

under § 15634(b) is completely consistent with recognized

exceptions to the Fourth Amendment warrant requirement

established by this and other courts.

Furthermore, the undisputed facts in this case establish that

Deputy Hockabout reasonably believed Winchester was in

immediate need of medical attention. Therefore, exigent

circumstances existed, obviating the need for a warrant.

C. The California Elder Abuse Act is Consistent with

42 U.S.C. § 1395ce.

Petitioners’ claim that the Elder Abuse Act is somehow

inconsistent with the so-called Patient Self Determination Act

warrants little discussion.

As discussed above, this issue was neither raised nor

decided in the state court proceedings.

In any case, at no time did Deputy Hockabout see

Winchester, who had suffered from dementia for many years,

act in any fashion to suggest that she was knowingly denying

consent. Furthermore, none of the Del Norte County Sheriff’s

deputies rendered medical treatment, and at no time while

hospitalized did Winchester refuse medical care provided.'®

10. There is no evidence that, after arriving at the hospital, .

Winchester declined medical care or otherwise objected to treatment

modalities. (See also, Easton I, 80 Cal. App. 4th at 323, under the

facts alleged in the complaint the California Court of Appeals in

Easton I assumed “Winchester was competent to decline to be

admitted to the hospital.”)

13

As petitioners acknowledge at page 6 in their petition for a

writ of certiorari, the Elder Abuse Act allows any victim of elder

or dependent adult abuse to refuse consent. Hence, there is no

conflict between the California Elder Abuse Act and 42 U.S.A.

§ 1395cc. Because there is no conflict between the Elder Abuse _

Act and the identified federal statute, certiorari must also be

denied as to the second issue presented.

CONCLUSION

For all the above stated reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

JOHN M. VRIEZE

Counsel of Record

WILLIAM F. MITCHELL

MITCHELL, BrRIsso,

DELANEY & VRIEZE

Attorneys for Respondents

814 Seventh Street

P.O. Drawer 1008

Eureka, CA 95502

(707) 443-5643