Opposition Brief — Heller v. Norcal Mutual Life Insurance

No. 94-822 Woy 13 694.

In The

Supreme Court of the United States

October Term, 1994

4

DORIS HELLER,

Petitioner,

NORCAL MUTUAL INSURANCE COMPANY, ET AL.,

Respondents.

———— cy

On Petition For Writ Of Certiorari

To The California Supreme Court

¢

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITIONER’S WRIT OF CERTIORARI

¢

Forrest A. PLANT

Counsel of Record

Dennis M. Campos

SEAN O. SHERIDAN

DierpENBROCK, Wu ter, PLANT &

HANNEGAN

300 Capitol Mall, Suite 1700

P.O. Box 3034

Sacramento, CA 95812-3034

(916) 444-3910

Attorneys for Respondent

Kent Yamaguchi, M.D.

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

R CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUP ee icc ccecscsntvvervdssesees iii

I. RESPONDENT YAMAGUCHI’S STATEMENT

Go EE PUI ht bn evn ecacensansaeuveeds) 1

A. Relationship of the Parties .............. 1

B. The Underlying Lawsuit................. 1

C. Procedural History of the Present

PORTE Sessa ivdntan cn enesscosenesccsncens 2

II. SUMMARY OF THE ARGUMENT ........... 3

ey PEE Ss Nu ie pearebeecernsenkécwn saws 5

A. The Issues Petitioner Raises Were Not

Considered or Determined By The Lower

Re ee ee a 5

1. This Court is Without Jurisdiction to

Decide Issues Raised Here for the First

eR aR Afar maeip is, Re ae PME Sed Gag! yl are ce |

2. Petitioner’s “Constitutional” Right of

ye ee ree 7

3. Petitioner’s “International Covenant

on Civil and Political Rights” Right of

PRP CONE scien ca dicsvetsiavaens 9

4. Petitioner Did Not Raise Previously

The Constitutionality of Civil Code

eR | | a a 11

5. Petitioner Did Not Raise Previously

Respondents’ Purported Capacity as

PE SUE 3 Cubed eek seul dae wenane 11

il

TABLE OF CONTENTS - Continued

Page

B. Petitioner Fails to Invoke the Requisite

State Action to Subject Respondents to

Fourteenth Amendment Scrutiny......... 12

IV. THE CALIFORNIA SUPREME COURT’S

OPINION IS CONSISTENT WITH THIS

COURT’S WELL-ESTABLISHED RULES

REGARDING DISCLOSURE OF MEDICAL

OT SEs ob bb cdadwenessassndeos darn 15

V. THIS IS NOT AN APPROPRIATE CASE FOR

THE COURT TO REVIEW DUE TO THE

INADBQUATE REOORD. ..csccccccccccsccecs 16

Vi. CR AME oi 0s cba itdas cstiameeeadeoes 18

lil

TABLE OF AUTHORITIES

Page

CASES

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71,

100 L.Ed. 2d 62 (1988)............eeeeeeees 6, 8, 9, 17

Blum v. Yaretsky, 457 U.S. 991, 73 L.Ed. 2d 534

Cy es seen bh de CA ae ven Viebedaresecestenvavees 13, 14

Buchanan v. Kentucky, 483 U.S. 402, 97 L.Ed. 2d 336

er er Te. eer Pere Te ee ee ee ree 7

Cardinale v. Louisiana, 394 U.S. 437, 22 L.Ed. 2d 398

SE re eer eee Tee eee eee 4, 5, 6, 11, T2

Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 835 (1883) .... 12

Dewey v. City of Des Moines, 173 U.S. 193, 43 L.Ed.

iy ives enh ene vdeccsceseneuneeeretas 9, 10

Fuller v. Oregon, 417 U.S. 40, 40 L.Ed. 2d 642 (1974)..... 7

H.L. v. Matheson, 450 U.S. 398, 67 L.Ed. 2d 388

SUE y oe kb ls C05 soc bins Ceevavectneeneseees 5, 15

Hill v. California, 401 U.S. 797, 28 L.Ed. 2d 484

MSG e EVRA RSS CL CSA a eres KbaHersoreneress ?

Hill v. National Collegiate Athletic Ass’n., 7 Cal. 4th

SN Siri das pris av 4s-o en sea sh sdan benens qareeere 4, 11

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42

i” 2G) . | eer eree &, 02, 13, 14

Mishkin v. State of New York, 383 U.S. 502, 16 L.Ed.

NS oi chan k ss awed Wbactnesvsceeseryecces 17

National Collegiate Athletic Ass’n v. Tarkanian, 488

U.S. 179, 102 L.Ed. 2d 469 (1988) ...............--- 14

Ohio v. Akron Center for Reproductive Health, 497

U.S. 502, 111 L.Ed. 2d 405 (1990) ............... a ie

iv

TABLE OF AUTHORITIES —- Continued

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. __, 120 L.Ed. 2d 674 (1992)..... 5, 15

Polk County v. Dodson, 454 U.S. 312, 70 L.Ed. 2d

i | PEPER OT PE ES TR CU POT ECL Cet hve Tete Peer 14

Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161 (1948)..12, 14

Tacon v. Arizona, 410 U.S. 351, 35 L.Ed. 2d 346

CE ohhh cea Ook Raw Kise ae ea Ea ea es ae 7

Taylor v. Illinois, 484 U.S. 400, 98 L.Ed. 2d 798

SI Gea % s5en'es ap Br Rane a hn Oe one a eee Oe aoe 8

Webb v. Webb, 451 U.S. 493, 68 L.Ed. 2d 392 (1981)

NN ee DUR Nr RECIPE NN RPAH ae GE ees rh a 6 7

CONSTITUTION

Sc a MINS FURS aiud CaS 0c 64 66-005 e oo eae Dede 12

ee

I.

RESPONDENT YAMAGUCHI’S STATEMENT

OF THE CASE

Mindful of the admonition in Supreme Court Rule

15.1 and request for brevity in Rule 15.3, Respondent

Kent Yamaguchi, M.D. offers a brief correction and sup-

plementation to Petitioner’s Statement of the Case.

A. Relationship of the Parties.

Respondent Yamaguchi is a medical doctor licensed

by the State of California and insured for professional

liability by Respondent Norcal Mutual Insurance Com-

pany. In 1987, Dr. John Geis admitted Petitioner to Sierra

Hospital to remove a bone spur from her left hand.

Thereafter, she developed a staphylococcal infection,

which Dr. Geis diagnosed and treated, and subsequently

amputated Petitioner’s third finger on her left hand with

Respondent Yamaguchi’s assistance. Petitioner dismissed

Dr. Geis as her treating physician but continued to treat

with Respondent Yamaguchi.

B. The Underlying Lawsuit.

Petitioner sued Dr. Geis for alleged medical malprac-

tice arising from his course and treatment of Petitioner.

Petitioner did not name Yamaguchi as a party to the

underlying action, but the attorney representing Dr. Geis

consulted with Yamaguchi to provide expert testimony. In

deposition, Yamaguchi testified he had met with a repre-

sentative of Respondent Norcal as well as Dr. Geis’ attor-

ney to discuss Petitioner’s condition and prognosis.

(Appendix - California Supreme Court Opinion, p. 4a.)

C. Procedural History of the Present Action. |

Based on the facts set forth above, Petitioner filed her

complaint against Respondents, among others. As Peti-

tioner notes, Respondents demurred to Petitioner’s

Fourth Amended Complaint,’ and the trial court sus-

tained Respondents’ demurrers’ without leave to amend

against all but the negligence cause of action against

Respondent Yamaguchi (which was not the subject of

demurrer). (Appendix — California Supreme Court Opin-

ion, p. 5a.)

The California Fifth District Court of Appeal

reversed the trial court’s order sustaining the demurrers

without leave to amend the cause of action for wrongful

disclosure of confidential medical information and the

cause of action for violation of constitutional right to

privacy. (Appendix - California Court of Appeals Fifth

District Opinion, p. 65a.)

The California Supreme Court reversed the Court of

Appeal’s judgment on the claims for wrongful disclosure

1 Respondent Yamaguchi, having answered Petitioner's

complaint, moved for judgment on the pleadings, the pro-

cedural effect of which is identical to demurrer. (Appendix -

California Court of Appeals Fifth District Opinion, p. 47a.)

of confidential medical information and violation of con-

stitutional right of privacy, and affirmed the court's deci-

sion in all other respects. (Appendix - California

Supreme Court Opinion, p. 16a.)

Petitioner now seeks a Writ of Certiorari, allegedly

on the basis her claim for violation of right of privacy

included her federal constitutional right of privacy appli-

cable to the states through the Fourteenth Amendment

and the privacy provisions of the International Covenant

on Civil and Political Rights (hereafter “the ICCPR”). As

discussed infra, Petitioner failed to raise either claim in

any of the lower court proceedings, and her Petition for

Writ of Certiorari should be dismissed accordingly.

II.

SUMMARY OF THE ARGUMENT

In her Petition for Writ of Certiorari, Petitioner

alleges for the first time the “constitutional rights of

privacy” Respondents allegedly violated include both her

federal constitutional right of privacy and the right of

privacy embodied in the ICCPR. However, both the Cali-

fornia Fifth District Court of Appeal and the California

Supreme Court only considered and ruled on whether

she stated a claim based on her California state constitu-

tional right of privacy, and did not consider or rule on

whether her rights of privacy embodied in the Fourteenth

Amendment and/or the ICCPR had been violated.

Additionally, Petitioner never challenged the consti-

tutionality of California Civil Code section 56.10(c)(4) in

the lower courts, but, rather, attempted to plead a viola-

tion of the Confidentiality of Medical Information Act to

which section 56.10(c)(4) would not be an exception. (See

Petition for Writ of Certiorari, pp. 11-12.)

Because Petitioner alleges for the first time her rights

of privacy embodied in the Fourteenth Amendment and

the ICCPR, and the constitutionality of Civil Code section

56.10(c)(4), this Court is without jurisdiction to decide the

merits of her Petition, and the Petition should be dis-

missed summarily. Cardinale v. Louisiana, 394 U.S. 437,

439, 22 L.Ed. 2d 398, 401 (1969); Webb v. Webb, 451 U.S.

493, 501-502, 68 L.Ed. 2d 392, 400 (1981).

To the extent the Court determines Petitioner pre-

served properly review of her alleged Fourteenth

Amendment right of privacy violation, the Petition must

be denied also because Respondents are a private indi-

vidual and a private entity, not subject to Fourteenth

Amendment scrutiny. Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 349-350, 42 L.Ed. 2d 477, 482-484 (1974).

Further, Petitioner failed to address Respondents’ status

as “state actors” in the lower courts devoiding this Court

of jurisdiction to determine this issue raised here for the

first time.?

Lastly, even assuming Petitioner can surmount these

procedural hurdles, this Court has upheld previously the

2 Petitioner’s failure to address previously Respondents’

purported “state action” evidences further the previously deter-

mined issues pertaining to violation of right of privacy were

limited to Petitioner’s state constitutional right of privacy

which applies to private as well as governmental entities. Hill v.

National Collegiate Athletic Ass’n., 7 Cal. 4th 1, 20 (1994).

constitutionality of statutes that require disclosure of con-

fidential medical information. H.L. v. Matheson, 450 U.S.

398, 67 L.Ed. 2d 388 (1981); Planned Parenthood of South-

eastern Pennsylvania v. Casey, 505 U.S. __, 120 L.Ed. 2d

674 (1992); Ohio v. Akron Center for Reproductive Health,

497 U.S. 502, 111 L.Ed. 2d 405 (1990). Accordingly, the

issue Petitioner seeks this Court to determine has already

been decided.

Il.

ARGUMENT

A. The Issues Petitioner Raises Were Not Considered

or Determined by the Lower Courts.

1. This Court is Without Jurisdiction to Decide

Issues Raised Here for the First Time.

It was very early established that the United States

Supreme Court will not decide federal constitutional

issues raised in the Supreme Court for the first time on

review of state court decisions. Cardinale, supra, 394 U.S.

at 438, 22 L.Ed. 2d at 400. Delivering the Cardinale court's

decision, Justice White commented:

Questions not raised below are those on which

the record is very likely to be inadequate, since

it certainly was not compiled with those ques-

tions 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 constitutionality.

Cardinale, 394 U.S. at 439, 22 L.Ed. 2d at 400.

In Webb v. Webb, 451 U.S. 493, 68 L.Ed. 2d 392 (1981),

Justice White again commented on the Cardinale rule:

At the minimum, however, there should be no

doubt from the record that a claim under a

federal statute or the Federal Constitution was

presented in the state courts and that those

courts were apprised of the nature or substance

of the federal claim at the time and in the man-

ner required by the state law.

Webb v. Webb, 451 U.S. 493, 501, 68 L.Ed. 2d 392, 400

(1981) (emphasis in original).

In Webb, petitioner sought review of a Georgia

Supreme Court decision alleging she invoked properly

the “full faith and credit” clause of the Federal Constitu-

tion. Webb, 451 U.S. at 496, 68 L.Ed. 2d at 396. Petitioner

argued further since the Georgia Constitution did not

contain specifically a “full faith and credit” clause, “there

can be no doubt that the above references in the record

were to the Federal Constitution and therefore that her

federal claim was properly presented.” Webb, 451 U.S. at

497, 68 L.Ed. 2d at 397. Delivering the court’s opinion

dismissing the petition, Justice White stated: “The Court

has consistently refused to decide federal constitutional

issues raised here for the first time on review of state

court decisions . .. We see no reason to deviate from [the

rule] now.” Webb, 451 U.S. at 499, 68 L.Ed. 2d at 398.

Similarly, in Bankers Life & Casualty Co. v. Crenshaw,

486 U.S. 71, 100 L.Ed. 2d 62 (1988), raising the Excessive

Fines Clause of the Eighth Amendment and the Due

Process Clause of the Fourteenth Amendment - issues not

raised properly below — the petitioner sought review of

the Mississippi Supreme Court's decision affirming impo-

sition of a punitive damage award. Bankers Life & Casualty

Co. v. Crenshaw, 486 U.S. 71, 77-80, 100 L.Ed. 2d 62, 71-73

(1988). Delivering the Court’s opinion dismissing the

Petition, Justice Marshall commented, “A party may not

preserve a constitutional challenge by generally invoking

the Constitution in state court and awaiting review in this

Court to specify the constitutional provision it is relying

upon.” Bankers, 486 U.S. at 77, 100 L.Ed. 2d at 71.3

2. Petitioner’s “Constitutional” Right of Privacy

Claim.

Here, Petitioner purports on page 16 of her Petition,

“the phrase ‘constitutional right to privacy’ as set forth in

Petitioner’s Brief on the Merits to the California Supreme

Court is used in reference with the United States Consti-

tution as well as the California Constitution.” However, a

thorough review of Petitioner’s Brief on the Merits does

not reveal a single reference to the Fourteenth Amend-

ment or to a United States Supreme Court decision inter-

preting the Fourteenth Amendment.

At best, Petitioner refers to her “constitutional right

to privacy,” in a fashion similar to the Webb petitioner’s

reference to the “full faith and credit” clause. As Webb

makes clear, a generic reference to a constitutional provi-

sion does not preserve properly a federal claim. Webb, 451

* Since Cardinale, this Court repeatedly upheld its rule. See,

e.g., Buchanan v. Kentucky, 483 U.S. 402, 404, n. 1, 97 L.Ed. 2d 336,

344 (1987); Fuller v. Oregon, 417 U.S. 40, 50, 40 L.Ed. 2d 642, 653

(1974); Tacon v. Arizona, 410 U.S. 351, 352, 35 L.Ed. 2d 346 (1973);

Hill v. California, 401 U.S. 797, 28 L.Ed. 2d 484 (1971).

U.S. at 497, 68 L.Ed. 2d at 397. Accord, Bankers Life &

Casualty, 486 U.S. at 77, 100 L.Ed. 2d at 71. See, Taylor v.

Illinois, 484 U.S. 400, 407, n. 9, 98 L.Ed. 2d 798, 809 (1988)

(“A generic reference to the Fourteenth Amendment is

not sufficient to preserve a constitutional claim based on

an unidentified provision of the Bill of Rights... ”).

Moreover, it is clear both the California Supreme

Court and the Fifth District Court of Appeal did not

believe Petitioner presented any federal issues. Discuss-

ing Petitioner’s alleged violation of her constitutional

right of privacy, the California Supreme Court stated:

Plaintiff’s 12th cause of action names as defen-

dants Yamaguchi and Norcal only, and alleges

that Yamaguchi secretly disclosed confidential

information to Norcal and its agents and

employees in violation of plaintiff's constitutional

right to privacy under article I, section 1 of the

California Constitution.

(Appendix — California Supreme Court Opinion, p. 12a.)

(emphasis added.)

Additionally, the California Supreme Court held

“[w]e conclude that, as a matter of law, plaintiff has failed

to state a cause of action for invasion of her state constitutional

privacy interest,” (Appendix, California Supreme Court

Opinion, p. 13a), and “in our view, plaintiff has not

alleged a sufficiently serious invasion of her privacy

interest to warrant actionable relief under the privacy

clause of our state Constitution. (Appendix, California

Supreme Court Opinion, p. 16a.) (emphasis added.)

Similarly, the Fifth District Court of Appeal held

“ ... the privilege created by section 47, subdivision (2)

must yield to the right of privacy created by article I, section

1, of the California Constitution. (Appendix - California

Fifth District Court of Appeal Opinion, p. 62a.)

Clearly, even if the California Supreme Court consid-

ered Petitioner’s Fourteenth Amendment right of privacy

claim, its decision rests on an interpretation of the Cali-

fornia state constitution’s privacy provision.

3. Petitioner’s “International Covenant on Civil

and Political Rights” Right of Privacy Claim.

Relying on Dewey v. City of Des Moines, 173 U.S. 193,

43 L.Ed. 665 (1899), Petitioner alleges this Court should

recognize her right of privacy embodied in the ICCPR as

a “mere enlargement” of her previous privacy claims.

Under the mere enlargement doctrine, “[p]arties are not

confined here to the same arguments which were

advanced in the courts below upon a Federal question

there discussed.” Dewey v. Des Moines, 173 U.S. 193, 198,

43 L.Ed. 665, 666 (1899). As recognized in Bankers Life &

Casualty, supra, “Dewey makes clear, however, that the

federal question must be brought to the attention of the

court below in some manner. ‘A claim or right which has

never been made or asserted cannot be said to have been

denied by a judgment which does not refer to it.’ ”

Bankers Life & Casualty, 486 U.S. at 78, n.2, 100 L.Ed. 2d at

72 (quoting Dewey).

Here, Petitioner concedes in the first full paragraph

of page 19 of her Petition, the ICCPR had not been

adopted until after she filed her appeal in the California

Fifth District Court of Appeal. In the same paragraph, she

10

also concedes “the Court of Appeal did not mention the

ICCPR in its ruling.” (emphasis added.)

Similarly, in the first full paragraph of page 20 of her

Petition, Petitioner concedes the ICCPR was “not expressly

mentioned in the briefing before the California Supreme

Court.” Petitioner also concedes in the second full para-

graph of page 20 of her Petition, “the Supreme Court had

the discretion to take judicial notice, sua sponte, of the

ICCPR but did not mention it in its decision.” (emphasis

added.)

Lastly, in an attempt to urge this Court to take up the

interpretation of the ICCPR, Petitioner argues in the first

full paragraph on page 22, “the ICCPR right of privacy,

though given its force and effect through the Supremacy

Clause of the Constitution, is a separate federal right which

Petitioner respectfully requests this Court to interpret.”

(emphasis added.)

Clearly, Petitioner neither raised the privacy provi-

sions of the ICCPR below, nor did the California Courts

base their decisions thereon. Thus, this Court is without

jurisdiction to interpret the same for Petitioner. Raising

the ICCPR at this stage of the proceeding exceeds the |

“mere enlargement” exception set forth in Dewey. By |

Petitioner’s own admission, her ICCPR privacy right is a

separate federal right, i.e, not a “mere enlargement.”

(Petition, p. 22.) Since Petitioner never made or asserted

her ICCPR privacy claim, Petitioner cannot say she has

been denied that right by the California Supreme Court.

Dewey, supra, 173 U.S. at 200, 43 L.Ed at 667.

11

4. Petitioner Did Not Raise Previously The Consti-

tutionality of Civil Code Section 56.10(c)(4).

Once again, a thorough reading of the Fifth District

Court of Appeal’s Opinion (Appendix - p. 60a), Peti-

tioner’s Answer Brief on the Merits (Appendix - pp.

100a-102a), and the California Supreme Court’s Opinion

(Appendix — pp. 6a-1la) regarding Civil Code section

56.10(c)(4) reveals Petitioner never raised, and the Cali-

fornia courts never ruled on, Section 56.10(c)(4)’s consti-

tutionality. Petitioner cannot now raise the

constitutionality of the statute for the first time. Cardinale,

supra, 394 U.S. at 438-439, 22 L.Ed. 2d at 400-401.

5. Petitioner Did Not Raise Previously Respon-

dents’ Purported Capacity as “State Actors.”

Had Petitioner sought to invoke the provisions of the

Fourteenth Amendment, one would expect to find a dis-

cussion of Respondents’ purported “state action.” Once

again, throughout Petitioner’s discussion regarding viola-

tion of her right of privacy (Appendix — Answer Brief on

the Merit, pp. 90a-100a), the Fifth District Court of

Appeal’s Opinion (Appendix — pp. 60a-62a), and the Cali-

fornia Supreme Court’s Opinion (Appendix - pp.

12a-15a), there is no discussion regarding the necessary

requirement of state action to invoke Fourteenth Amend-

ment scrutiny. Petitioner’s failure to raise previously the

state action issue is particularly illuminating considering

the California constitutional privacy provision does not

require a showing of state action before its protections are

invoked. Hill v. National Collegiate Athletic Ass’n., 7 Cal.

4th 1, 20 (1994). Petitioner cannot now raise state action

12

for the first time. Cardinale, supra, 394 U.S. at 438-439, 22

L.Ed. 2d at 400-401.

B. Petitioner Fails to Invoke the Requisite State Action

to Subject Respondents to Fourteenth Amendment

Scrutiny.

The Due Process Clause of the Fourteenth Amend-

ment provides: “[NJor shall any State deprive any person

of life, liberty, or property, without due process of law.”

In 1883, this Court in the Civil Rights Cases, 109 U.S. 3, 27

L.Ed. 835, affirmed the essential dichotomy set forth in

that Amendment between deprivation by the State, sub-

ject to scrutiny under its provisions, and private conduct,

“however discriminatory or wrongful,” against which the

Fourteenth Amendment offers no shield. Jackson v. Metro-

politan Edison Co., 419 U.S. 345, 349, 42 L.Ed. 2d 477, 483

(1974), quoting, Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161

(1948).

Here, Petitioner claims state action can be found

based on Respondent Norcal’s role as a regulated insur-

ance company coupled with the Court’s actions in

allegedly depriving Petitioner of her privacy rights. (Peti-

tion, pp. 13-15.)

Petitioner’s argument regarding Norcal’s status as a

regulated industry was considered and rejected in Jack-

son, supra. In Jackson, the Petitioner alleged respondent

public utility was extensively regulated by the State of

Pennsylvania, and as such, the utility’s actions in termi-

nating her utilities, was the state’s action.

13

Delivering the Court’s opinion dismissing the Peti-

tion, then, Justice Rehnquist stated:

The mere fact that a business is subject to state

regulation does not by itself convert its action

into that of the State for purposes of the Four-

teenth Amendment. Nor does the fact that the

regulation is extensive and detailed, as in the

case of most public utilities, do so... . [T]he

inquiry must be whether there is a sufficiently

close nexus between the State and the chal-

lenged action of the regulated entity so that the

action of the latter may be fairly treated as that

of the State itself.

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-351, 42

L.Ed. 2d 477, 483-484 (1974).

“The purpose of this requirement is to assure that

constitutional standards are invoked only when it can be

said that the State is responsible for the specific conduct of

which the plaintiff complains.” Blum v. Yaretsky, 457 U.S.

991, 1004, 73 L.Ed. 2d 534, 546 (1982) (private nursing

home's decision to discharge or transfer Medicaid patient

not state action).

Similarly, here, Petitioner argues state action should

be presumed because the professional liability insurance

industry is regulated by the State of California and the

number of professional liability carriers is limited, appar-

ently implying a monopoly. Petitioner has failed to show

the necessary nexus between Respondent Norcal and the

State such that Norcal’s actions can be charged to the

State.

14

Further, if Petitioner’s argument were true,

Doctors [such as Respondent Yamaguchi],

optometrists, lawyers, Metropolitan, and Neb-

bia’s upstate New York grocery selling a quart

of milk are all in regulated businesses, provid-

ing arguably essential goods and services,

“affected with a public interest.” We do not

believe that such a status converts their every

action, absent more, into that of the State.

Jackson, 419 U.S. at 354, 42 L.Ed. 2d at 485-486.

Additionally, Petitioner’s reliance on Shelley v.

Kraemer, 334 U.S. 1, 92 L.Ed. 1161 (1947) is misplaced. If

the Court had interpreted Shelley in the manner Petitioner

proposes, there would not exist state action cases subse-

quent to Shelley. This Court has rejected such an expan-

sive reading of Shelley and has maintained a state-private

distinction. See, e.g., National Collegiate Athletic Ass'n v.

Tarkanian, 488 U.S. 179, 102 L.Ed. 2d 469 (1988) (participa-

tion of national collegiate athletic association in events

which led to suspension of basketball coach by member

state university not state action under Fourteenth

Amendment’s due process clause); Blum, supra; Polk

County v. Dodson, 454 U.S. 312, 320, 70 L.Ed. 2d 509 (1981)

(state compensated public defender acts in private capac-

ity when defending private client in conflict with State);

Jackson, supra.

Thus, Respondents are not subject to Fourteenth

Amendment scrutiny because they did not act on the

State’s behalf.

15

IV.

THE CALIFORNIA SUPREME COURT’S OPINION

IS CONSISTENT WITH THIS COURT’S WELL- .

ESTABLISHED RULES REGARDING DISCLOSURE

OF MEDICAL INFORMATION.

The constitutionality of disclosure of medical infor-

mation is not a novel issue for this Court. In H.L. v.

Matheson, 450 U.S. 398, 67 L.Ed. 2d 388 (1981), this Court

held a Utah statute that required a physician to “notify, if

possible,” the parents of a minor seeking an abortion did

not violate her Fourteenth Amendment right of privacy.

H.L. v. Matheson, 450 U.S. 398, 407, 413, 67 L. Ed. 2d 388,

397, 401 (1981). Accord, Ohio v. Akron Center for Reproduc-

tive Health, 497 U.S. 502, 518-520, 111 L.Ed. 2d 405,

423-425 (1990); Planned Parenthood of Southeastern Pennsyl-

vania v. Casey, 505 U.S. __, 120 L.Ed. 2d 674, 728-729

(1992).

Here, the California Supreme Court, relying on its

previous decision in Hill, supra, determined Petitioner

failed to “plead facts supporting a conclusion that any

expectation of privacy as to her medical condition would

be reasonable under the circumstances . . . ” (Appendix -

California Supreme Court Opinion, p. 13a.) The Califor-

nia Supreme Court held further:

The discussions between [Respondents]

Yamaguchi and Norcal could not be considered

sufficiently serious in their scope or impact to

give rise to an actionable invasion of privacy.

Because the information would most likely have

been discovered during the ordinary course of

litigation, defendants’ conduct in revealing

information about plaintiff’s treatment and

16

physical condition does not violate the state

constitutional guarantee against invasion of pri-

vacy as a matter of law.

(Appendix — California Supreme Court Opinion, p. 15a.)

Similar to the minor who places her medical condi-

tion at issue by seeking an abortion, by filing the underly-

ing action, Petitioner placed her physical condition at

issue. By seeking judicial intervention, Petitioner’s expec-

tation of privacy regarding her medical condition, as is

the minor’s expectation of privacy in the fact that she is

seeking an abortion, was substantially lowered. In con-

trast to this Court’s previous decisions requiring dis-

closure to her parent the minor’s request for an abortion

-— information one would expect to have either already

been provided by the minor to her parent or that the

minor did not want her parent to know - Petitioner

alleges Respondent Yamaguchi purportedly disclosed

information that “would most likely have been discov-

ered during the ordinary course of litigation... ”

(Appendix — California Supreme Court Opinion, p. 15a.)

Thus, the California Supreme Court’s opinion that

Respondents did not violate Petitioner’s right of privacy

is consistent with this Court’s prior opinions regarding

disclosure of medical information.

V.

THIS IS NOT AN APPROPRIATE CASE

FOR THE COURT TO REVIEW DUE

TO THE INADEQUATE RECORD.

This Court has traditionally exercised sparingly its

power to grant Writs of Certiorari, typically limiting its

17

docket to cases with the potential for significant nation-

wide negative impact. Respondent Yamaguchi submits

this is not an appropriate case for the Court to review

because of the inadequate record pertaining to the Four-

teenth Amendment issues Petitioner now raises. Peti-

tioner’s failure to raise previously these issues through

demurrers to five complaints, and review by California’s

Fifth District Court of Appeal and Supreme Court should

not be validated at the expense of this Court’s precious

resources. Interpretation of a Constitutional issue “is a

question of some moment and difficulty,” (Bankers’ Life &

Casualty, supra, 486 U.S. at 79, 100 L.Ed. 2d at 73), and

Petitioner should have developed the record regarding

that interpretation below, not here. See, Mishkin v. State of

New York, 383 U.S. 502, 512-513, 16 L.Ed. 2d 56, (1966)

(“The far-reaching and important questions tendered by

this claim are not presented by the record with sufficient

clarity to require or justify their decision’).

Granting the Petition would most likely result in an

eventual remand to the California courts to determine

issues that Petitioner should have litigated prior to filing

her Petition. Accordingly, her Petition should be denied.

18

VI.

CONCLUSION

Respondent Yamaguchi respectfully requests the

Court summarily deny the Petition for Writ of Certiorari.

DATED: November 18, 1994

Respectfully submitted,

Forrest A. PLANT

Counsel of Record

Dennis M. Campos

SEAN O. SHERIDAN

DIEPENBROCK, WuLFF, PLANT &

HANNEGAN

300 Capitol Mall, Suite 1700

P.O. Box 3034

Sacramento, CA 95812-3034

(916) 444-3910

Counsel for Respondent

Kent Yamaguchi, M.D.