# Opposition Brief — County of Saginaw v. Whaley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 975

## Text

No. 95-427 (9)

an The Supreme Court, U.S.
Supreme Court of the Wnited) States * ”
October Term, 1995 OCT 11 1995
e

THE CLERK
COUNTY OF SAGINAW; M.B. coLppeRch ith
individually and as Saginaw County Chief Medical Examiner,
Petitioners,
Vv

DIANE M. WHALEY, et al; WILLIAM E. JONES, et al;
CHRISTINE M. TUNNEY, et al; RITA SHARRARD; LUCILLE
JONES MILLER, et al; GEORGE SAUNDERS, et al; COUNTY
OF TUSCOLA, through its governing body, Tuscola County Board
of Commissioners; ARMANDO HERRERA, Executive Director of

Mid Regional Tissue Center; ARMANDO HERRERA,
individually, and d/b/a Central Michigan Eye Bank and Tissue
Center, d/b/a Central Michigan Eye Bank; MID REGIONAL

TISSUE CENTER, a Michigan non-profit corporation; SAGINAW
COMMUNITY HOSPITAL, a county public hospital;
LANKENAW HOSPITAL, a Pennsylvania non-profit corporation;
CHRISTOPHER C. TAYLOR, individually, and as former Tuscola
County Commissioner; HERBERT L. NIGG, M.D., individually;

RONALD G. HINES, M.D., Pathologist for Tuscola County;

IRVING M. RABER, M.D., a Pennsylvania professional

corporation; JAMES W. BAKER, Personal Representative for the
Estate of Armando Herrera, Deceased,
Respondents.
* a
On Petition For A Writ of Certiorari
To The United States Court of Appeals
From The Sixth Circuit
S “
BRIEF IN OPPOSITION TO PETITION FOR
A WRIT OF CERTIORARI

t -
Kenneth K. Wright neil RECEI Vv E D :
Counsel of Record \

Kenneth K. Wright (P29445) OCT 12 1995
John W. Grigg (P37424)
Seward, Tally & Piggott, P.C. OFFICE UF int CLERK

Counsel for Responde
1009 Washington Avenue | SUPREME COURT, U.S.

Bay City, Michigan 48708-578¢
(517) 892-6551

QUESTION PRESENTED

The Plaintiffs brought these §1983 actions, alleging that the
Defendants violated their Fourteenth Amendment procedural
due process rights by removing the corneas and/or eyes of their
recently deceased relatives. The question presented is whether
under Michigan law next of kin have a constitutionally protected
property interest in deceased relatives’ bodies enabling them to
assert procedural due process claims under 42 USC $1983.

TABLE OF CONTENTS

PAGES
QUESTION PIRGMOU Ress 6.ctvcccccethbstadevsscenenty i
TABLE. OF ALFERROEEIOD icsduscdcuaeds isvebiiyetes iii
I STATEREENT GP ‘Timie Celis 5 oecnsdsteceecvsavaes 2
A. Wane ieas ta cies Fite dn anna de eee 2
B. Legal Proceedings Below ................sseeee08: 3
1. The District Court Proceedings................ 3
2. The Decision of the Sixth Circuit Court of
AaOOUI . . a's. ass 16556045 en see PEN en ate 3
II REASONS FOR DENYING TEE PETITION....... 5
A. This is Purely a Matter of Construing State Law... 5
B. There is No Conflict Between the Circuits........ 7
C. Conscription of Organs is Neither Preferred Nor
a Matter of National Policy ....................+. 10
1. The Evolving Uniform Anatomical Gift Act... .. 10
2. Federal Policy Mandates Request and
Conte 5c ccksucdsadeameeiedae eee 12

TTT CONCLUSIAANS oo. ciccccvnsivenatsanaene erat eeeent 15

iii

TABLE OF AUTHORITIES

PAGES

CASES
Arnaud v Odom,

870 F 2d 304 (5th Cir., 1989), cert den 493 US 855

eo cups cswewast 7,8
Brotherton v Cleveland,

Ge © Sa 477 (Gime Cie. 1001) .... lec ccccces 3,4,5,

6,7,10

Deeg v City of Detroit,

SoU I Ps Oe CRO ag oc ecu cvcctccccsccdecces 4
Doxtator v Chicago & W. Mich R.R.,

190 Bite Dee. GOT CIGOS)... ww. ccc ccc ccc cccees 4
Florida v Powell,

ee nw obovceeccscecceunte 8.9
Fuller v Marx,

See ae eee Ge, BOE) Co gcc acc ccccccccacses 8
Georgia Lions Eye Bank v LaVant,

Soo Ge Ge sao Se Ba 197 (1065) ... 5... 0. ccc eee 8.9
Haring v Prosise,

462 US 306, 314, n. 8; 103 S Ct 2360, 2373, n. 8;

es ee ee ee A) cin bo vce cbicccbwccceces 5
Keyes v Konkel,

Bee mes ee, SN CRBOD). o.oo c cc ccc ccccsvccccccs 4
Lawyer v Kemodle,

Be Ge | 8
Lyon v United States,

843 F Supp 531 (DC, MN, 1994)................6. 9,10

Memphis Light, Gas & Water Div. v Kraft,
436 US 1, 9; 98 S.Ct 1554; 56 L Ed 2d 30 (1978).. 5,89

Perry v Saint Francis Hospital,
886 F Supp 1551 (DC, KA, 1994);
FOE a 0600 450k vwgse eves SE ran 911

iv

PAGES
Tillman v Detroit Receiving Hosp.,
138 Mich App 683; 360 NW 2d 275, 277 .......... 4
Vogelaar v United States,
665 F Supp 1295, 1306 RED sd 1 chicks ania ceec ie 7
Watt v Alaska,
451 US 259, 273; 101 S Ct 1673; 68 L Ed 2d 80,
dt RR SR ES aa: a pie hel een eee 16
COURT RULES
SN oo ba vo rav kcbererecterveise ee 3
UE oF 2c. ok wav ncn cavdad. BEA ee AOA 3
STATUTES
FEDERAL
IS is oe he ya = 8a ee alae 12
Ge I a at 5 Si boos ocak oo Rice vier soaks as 6
Pub. L. No. 103-432, Title I, sec. 155(b) ........... 14
STATE
MCLA 333.10108; MSA 14.15(10108).............. 7
MCLA 333.10203; MSA 14.15(10203).............. 7
MSA $9525.921 to 525.9224 (Minnesota) .......... ]
OTHER AUTHORITIES
Journal of Health Politics, Policy and Law,
Vol. 14, No. 1 (1989), OD TPG kos csaoiacncines 14
Report of the Task Force on Organ
FP Te Peer TEE TTR TTT Tee 12,13,
15

UCLA AUT CEES BOGS BO. vin asec bnncneiceras 1]

No. 95-427

gn The
Supreme Court of the Wnited States

October Term, 1995
¢

COUNTY OF SAGINAW; M.B. GOLDBERGER, D.O.,
individually and as Saginaw County Chief Medical Examiner,
Petitioners,

¥

DIANE M. WHALEY, et al; WILLIAM E. JONES, et al;
CHRISTINE M. TUNNEY, et al; RITA SHARRARD;
LUCILLE JONES MILLER, et al; GEORGE SAUNDERS,
et al: COUNTY OF TUSCOLA, through its governing body,
Tuscola County Board of Commissioners; ARMANDO
HERRERA, Executive Director of Mid Regional Tissue
Center, ARMANDO HERRERA, individually, and d/b/a
Central Michigan Eye Bank and Tissue Center, d/b/a Central
Michigan Eye Bank; MID REGIONAL TISSUE CENTER, a
Michigan non-profit corporation; SAGINAW COMMUNITY
HOSPITAL, a county public hospital; LANKENAW
HOSPITAL, a Pennsylvania non-profit corporation;
CHRISTOPHER C. TAYLOR, individually, and as former
Tuscola County Commissioner; HERBERT L. NIGG, M.D.,
individually, RONALD G. HINES, M.D., Pathologist for
Tuscola County; IRVING M. RABER, M.D., a Pennsylvania
professional corporation; JAMES W. BAKER, Personal
Representative for the Estate of Armando Herrera, Deceased,

Respondents.

---- .
On Petition For A Writ of Certiorari
To The United States Court of Appeals
From The Sixth Circuit

BRIEF IN OPPOSITION TO PETITION FOR
A WRIT OF CERTIORARI
F Oak

LL

I
STATEMENT OF THE CASE

A. Introduction

These six cases arose out of the non-consensual removal of
eyes and/or corneas from bodies held for Saginaw and Tuscola
County Medical Examiner autopsies. Initially they were not
consolidated. The Sixth Circuit's recitation of facts, on which
Petitioners rely, is largely correct, but overlooked some of the
documented facts and/or misstated others. So that there be no
misunderstanding, the Respondent Plaintiffs point out the
following inaccuracies in the Sixth Circuit's statement of facts:

1. The Sixth Circuit failed to identify Dr. Hines as a Deputy
Medical Examiner in Saginaw County, as well as its contracted
pathologist for Medical Examiner autopsies.' He pronounced the
death in the Saunders case.

2. The business arrangement existed only between Saginaw
County and Herrera.? There was no such agreement with Tuscola
County as recited below.

3. Corneas and/or eyeballs were removed while the bodies
were held for Medical Examiner autopsy; enucleation not always
following autopsy as recited below.*

4. Contrary to the lower opinion, Plaintiffs sued only in
federal court after discovery in a state court action, involving
another autopsy, produced records of more than forty other

non-consensual tissue removals at Medical Examiner autopsies

' Whaley, First Amended Complaint, 42 and Exhibit 5, Death Certificate.
? Appendix 1 and 2.

* The autopsy reports on Ricky Jones, Glenn Sharrard and Lee Tunney stated
Dr. Hines found the corneas removed on external examination of the bodies.
Jones Brief, 7/6/93, Ex. 2; Sharrard Complaint, Ex. 11; and Tunney Complaint,
Ex. 10.

performed by Hines, and the disposition of harvested tissue
outside Michigan and the United States.‘

5. Consolidation was ordered at the hearing on Defendants’
Motions for Summary Disposition.>

These actions were dismissed under FRCP 12(b)(6), but
dismissal had also been sought under FRCP 56(b). The sizeable
record below amply demonstrates Petitioners’ policy of allowing
non-consensual tissue harvest at Saginaw County Medical
Examiner autopsies and its occurrence in these cases. Such
explains Petitioners’ desperation in seeking certiorari at this stage
of the proceedings.

Petitioners have incorrectly named all other parties to these
consolidated cases as “Respondents”. Rita Sharrard is Plaintiff in
an action arising out of a Tuscola County autopsy. Tuscola County,
and its late Medical Examiner, Dr. Nigg, conceded below that
Plaintiffs/Respondents have sufficient interests in the bodies of
their respective decedents to warrant due process protection. As
noted by the Sixth Circuit, Tuscola County contends that it did
not have a policy allowing non-consensual cornea removal and
deserves dismissal under FRCP 56(b). (Petitioners’ Appendix 1,
ftnt 1.)

B. Legal Proceedings Below.
1. The District Court Proceedings
The foregoing has addressed the inadequacies in Petitioners’
recital as to the proceedings in the district court.
2. The Decision of the Sixth Circuit Court of Appeals

Defendants inaccurately portray the Sixth Circuit's decision
as grounded in the conclusion “that what is relevant for the
Brotherton analysis is that the right to possess the body exist, not
that the right was grounded in Michigan statute or in the common

*Whaley First Amended Complaint, 4437-41 and Ex. 7-11; Tunney
Complaint, 9440-43 and Ex. 2, 11-12; Saunders Complaint, 4451-54; Jones
Complaint, 4434 and 43 and Ex. 14-16; and Miller Complaint, 4431-33, 35-36,
and Ex. 1-2, 5-8, and 10-11.

* Tr, 9/29/93, p 5.

law of Michigan.” (Petition, p 6, citing Brotherton v Cleveland,
923 F 2d 477 (6th Cir, 1991).) Brotherton found that “the
aggregate of rights granted by the state of Ohio to the next of kin
rises to the level of a ‘legitimate claim of entitlement’ in the
deceased person’s body, including his corneas, protected by the
due process clause of the fourteenth amendment.” Brotherton,
supra, p 482. Included within that “aggregate” were the rights to
possess the body and to control the disposition of the body. Ibid.

Reviewing Michigan law, after noting that the existence of
a constitutionally protected roperty interest turns upon the
substance of the right as opposed to its label under state law, the
Sixth Circuit found that the laws of Ohio and Michigan are “in
substance the same” and “(i)f anything, Michigan is even more
explicit in its acknowledgment of these rights.” (Petitioners’
Appendix 7.) It cited three Michigan Supreme Court cases
holding that the next of kin “are entitled to possession of the body
as it is when death comes, and that it is an actionable wrong for
another to interfere with that right by withholding the body or
mutilating it in any way.” Ibid., pp 9-10, citing Doxtator v
Chicago & W. Mich R.R., 120 Mich 596, 597 (1899); Keyes v
Konkel, 119 Mich 550, 551 (1899); and Deeg v City of Detroit,
345 Mich 371, 376 (1956); as well as Tillman v Detroit Receiving
Hosp., 138 Mich App 683; 360 NW 2d 275, 277.6 It also found:
Michigan's version of the Uniform Anatomical Gift Act was the
same as Ohio's in granting next of kin the choice of making a gift
of all or part of a decedent's body, at least when the decedent had
not evidenced a contrary intent’; other Michigan statutes
contemplate that next of kin have the right to possess the body for
burial; and, that the district court had ‘mistskenly focused on the
label attached to the right rather than its substance.” These rights
being found under Michigan law, and to “closely correspond with

* Petitioners’ reliance on Tillman, supra, is further misplaced because,
ultimately, it addressed whether a decedent's personal representative had
standing to challenge non-consensual corneal removal as an invasion of the
decedent's privacy. The right of privacy ending at death, the Michigan Court of
Appeals rejected “plaintiff's constitutional challenge predicated on the right of
privacy.” Ibid., at 687.

7 Ohio has subsequently amended its law. Infra.

the ‘bundle of rights’ by which property has been traditionally
defined”, the Sixth Circuit reversed the dismissal of these
consolidated cases. (Petitioners’ Appendix, pp 10-13.)

II.
REASONS FOR DENYING THE PETITION

A. This is Purely a Matter of Construing State Law.

This Court places great deference upon the interpretation of
state law made by the Court of Appeals. Haring v Prosise, 462 US
306, 314, n. 8; 103 S Ct 2360, 2373, n. 8; 76 L Ed 2d 595, 604,
n. 8. Here, that interpretation was in accord with numerous prior
decisions of this Court as to the means by which to determine the
existence under state law of sufficient property interests to
warrant due process protection.

“The Fourteenth Amendment places procedural
constraints on the actions of government that work a
deprivation of interests enjoying the stature of ‘property’
within the meaning of the Due Process Clause.
Although the underlying substantive interest is created
by ‘an independent source such as state law’ federal
constitutional law determines whether that interest
rises to the level of a ‘legitimate claim of entitlement’
protected by the Due Process Clause. Board of
Regents v Roth, 408 US 564, 577; 92 S Ct 2701;
33 L Ed 2d 548 (1972); Perry v Sinderman, 408 US
593, 602; 92 S Ct 2694, 33 L Ed 2d 570 (1972). The
outcome of that inquiry is clear in this case.” Memphis
Light, Gas & Water Div. v Kraft, 436 US 1, 9; 98 S Ct
1554; 56 L Ed 2d 30 (1978). See also, Petitioners’

Appendix, pp 5-6.

Petitioners recognized that Plaintiffs’ claims were grounded upon
the decision in Brotherton, supra, so they rejected it as improperly
decided and/or distinguishable. They assert that the Sixth Circuit
has improperly stretched the constitutional protection of property
rights beyond the meaning of “property” used in the Fourteenth
Amendment. Petitioners cite no authority and have failed to

distinguish Plaintiffs’ or Mrs. Brotherton’s entitlement to the
remains of their deceased family members from the statutory
entitlements recognized by this court as warranting pre-deprivation

due process protection in the following cases cited in Brotherton:

Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed
2d 287 (1970) — welfare recipient had claim of
entitlement under statute to continued benefits
requiring eligibility hearing before benefits were cut

off.

Boddie v Connecticut, 401 US 371; 91 S Ct 780;
28 L Ed 2d 113 (1971) — state denied due process to
indigents by denying statutory entitlement to divorce
absent payment of court costs and fees.

Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d
90 (1971) — driver's license as a statutory entitlement
cannot be taken away without notice and opportunity
for hearing.

Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d
566 (1972) — replevin statutes authorizing prejudgment
repossession of household goods held to violate

procedural due process.

These cases show that the Sixth Circuit has not expanded any
definition or the concept that statutory entitlements are sufficient
to warrant pre-deprivation due process under 42 USC 1983.

While the district court's interpretation differed, the appellate
court clearly identified the district court’s error by following this
Court's admonition to look for substance rather than label in
determining the existence of property rights under state law.
Petitioners’ argument relies purely on label, and is faulty for the

Same reason.

“Few things are more cherished, respected, or sacred
than the right to bury our dead. There is a cognizable
and compensable interest under Michigan law in ‘the
comfort of knowing that the deceased has been given a

comfortable and dignified resting place.’ Allinger v
Kell, 102 Mich App 798, 808-809, 302 NW2d 576, rev'd

on other grds, 411 Mich 1053, 1053-54, 309 NW2d 547
(1981) (citing Restatement (Second) of Torts §868,
p 274 (1979)).” Vogelaar v United States, 665 F Supp
1295, 1306 (1987).

titioners’ chastise Plaintiffs for choosing not to pursue state
law claims for mutilation of a body. (Petition, p 13.) They further
assert immunity under MCLA 333.10203; MSA 14.15(10203) and
MCLA 333.10108; MSA 14.15(10108). These issues were not
passed upon in the lower courts. (Petitioners’ Appendix, p 3, fn 1)
But, recognizing the Sixth Circuit's decision as correct on the Due
Process issue, then state immunity defenses must fail.®

There is no reason for this Court to entertain further review as
to whether Michigan law recognizes the rights found by the lower
court or whether those rights warrant due process protection.

B. There is No Conflict Between the Circuits.

Despite Petitioners’ assertion, no other circuit has reviewed
Michigan law as to whether next of kin have a sufficient interest
in a decedent's body to warrant due process protection. In
addition, each case cited as conflicting with Brotherton, supra,
and the present action, is distinguishable.

Arnaud v Odom, 870 F 2d 304 (5th Cir., 1989), cert den
493 US 855 (1989), dealt with wrongful experimentation upon
decedents’ bodies, not non-consensual tissue removal. The
dismissal of plaintiff's Section 1983 claims was grounded in there

* “Municipal defenses — including an assertion of sovereign immunity — to
a federal right of action are, of course, controlled by federal law.’ Owen v City
of Independence, 445 US 647, n 30, 63 L Ed 2d 673, 100 S Ct 1398. ‘By
including municipalities within the class of ‘persons’ subject to liability for
violations of the Federal Constitution and laws, Congress — the supreme
sovereign on matters of federal law — abolished whatever vestige of the State’s
sovereign immunity the municipality possessed.’ Id., at 647-648, 63 L Ed 2d 673,
100 S Ct 1398 (footnote omitted).” Howlett v Rose, 496 US 356, 376; 110 S Ct
2430; 110 L Ed 2d 332 (1990).

“Congress surely did not intend to assign to state courts and legislatures a
conclusive role in the formative function of defining and characterizing the
essential elements of a federal cause of action.’ Wilson v Garcia, 471 US 261,
269, 85 L Ed 2d 254, 105 S Ct 1938 (1985).” Ibid., p 378.

being adequate state law remedies to redress the plaintiff's
injuries. Ibid., p 309. The Eighth Circuit decisions do not support
Petitioners either. Fuller v Marx, 724 F 2d 717 (8th Cir., 1984),
found adequate pre-deprivation process under Arkansas Statutes
Annotated, 82-434, to defeat a Section 1983 claim for failure to
return a decedent's organs after autopsy. It did not reach the
Constitutional issue.® Petitioners inaccurately state that Lawyer v
Kernodle, 721 F 2d 632 (8th Cir., 1983), “affirmed the dismissal
of the constitutional claim because the Plaintiff failed to show a
deprivation of any property interest.” (Petition, p 20.) ;
supra, stands for no such proposition. Actually, the Eighth Circuit
found that Missouri law confers on a surviving husband “a
quasi-property right which entitles him to the possession and
control of the body for the single purpose of decent burial.” [bid.,
p 734. No due process violation was asserted where the husband
alleged negligent diagnosis of cause of death, rather than
interference with his “right to bury his deceased spouse.” Id.,
p 735.

Similarly, the Florida and Georgia supreme court decisions
asserted as conflicting with the lower court are i
distinguishable. Florida v Powell, 497 So 2d 1188 (1986), did not

__emplay a Memphis Light, supra, inquiry as to whether survivor's
“3 statutory entitlement to receive and dispose of a decedent's body
was a sufficient property interest to warrant due process protection.
Rather, on a balancing of interests inquiry, it found Florida’s
non-consensual cormmea removal provision “reasonably achieves

the permissible legislative objective of providing sight to many of

Florida's blind citizens” Ibid., p 1191. Unlike the present case
where corneas and/or eyes were shipped out of state and overseas,
it found that Florida's “medical examiners may not automatically

reich tole’ fetes WE ecidiiee GANG te autopsy; rather, a
request must be made by an eye bank based on on present eed
the tissue.” Id. Similarly, Georgia Lions Eye v LaVant, 255

Ga 60; 335 SE 2d 127 (1985), found that Georgia’s non-consensual
corneal removal provision “yearly benefits hundreds of Georgians”.

Whee 8c, ie sah ticle bch da ie Rag! O02 a
Amaud, supra, at p 719.

Ibid., p 129. Neither employed the Memphis Light, supra, line of
inquiry. But, Georgia Lions Eye Bank, supra, found a common
law “quasi-property right” in the possession and control of a
decedent's body. Ibid., p 128. Florida, supra, cited numerous
decisions recognizing that next of kin are entitled to possession of
a decedent's body, but refused to classify it as a “property” right.
Ibid., p 1191-92. Both cases appeared to focus on the label
attached to the right, rather than upon its substance. But, unlike
the present case, both focused on balancing intrastate interests.
Neither necessarily support a medical examiner's employment of
a tissue harvester and non-consensual cormeal removal for interstate
and international sale as occurred here.

Florida has subsequently enacted laws and _ regulations:
establishing a state registry for organ donation, requiring hospital
administrators to check the registry and/or obtain consent from
the next of kin before any organ or tissue removal, prohibiting a
medical examiner from allowing an organ or tissue procurement
agency to provide employees or salaries for any members of the
medical examiner's office, and defining “donation” as “the free
and voluntary gift of one or more organs or tissues for the purpose
of medical research or transplant.” See Appendix 3-4 and 3-5,
infra.

In addition, Petitioners have failed to cite any decisions from
other circuits contrary to their position. Two such cases are
Perry v Saint Francis Hospital, 886 F Supp 1551 (DC, KA, 1994);
865 F Supp 724; and Lyon v United States, 843 F Supp 531 (DC,
MN, 1994). The former is “a tissue donation case in which the
plaintiffs allege that defendants took from the ... body more
tissue than what the plaintiffs’ (sic) had agreed to donate.” Perry,
supra, p 1553. It found: “Kansas law considers Mary Anne Perry
(the widow) to be the exclusive owner of a quasi-property right in
the body, namely, the right to possess it for the limited purposes
of preserving and burying it.” Ibid., p 1563. Lyon, supra, found a
Veteran’s Administration Hospital and physician entitled to
“good-faith immunity” under Minnesota's version of the Uniform
Anatomical Gift Act. (MSA $9525.921 to 525.9224.) There, a
decedent's eyes were removed after consent was denied, but upon
discovery of the error, the eyes were returned in time for burial

10

with the remainder of the body. It found the good-faith immunity
provision under the Act “designed for situations ... where
because of confusion an organ is removed without genuine
consent.” Lyon, supra, p 736. Here, there was neither confusion,
nor any consent whatsoever, where no effort was made to obtain
Plaintiffs’ consent to tissue removal or their refusals to consent

were blatantly disregarded.

Taken altogether, whether a survivor's interest in a decedent's
body warrants due process protection is a question of state law, so
the existence of varying decisions between the circuits does not
mean that this Court should intercede and adopt one circuit's
position over that of any other. Despite their protestations,
Petitioners have not shown that the Sixth Circuit erred in
Brotherton, supra, or the present case.

C. Conscription of Organs is Neither Preferred Nor A
Matter of National Policy.
1. The Evolving Uniform Anatomical Gift Act.

Petitioners passionately argue that the need for
non-consensual eye and cornea removal justifies certiorari and
declaration that “conscription of organs” (Petition, p 22) outweighs
the rights of decedents’ survivors. There are numerous variations
between the states with respect to the laws on organ and tissue
removal for transplantation.!° While Petitioners cite the 1987
UAGA, Michigan is not among the twenty-three states which have
adopted it. At present, three editions of the Uniform Anatomical
Gift Act have been enacted by various states.

The 1968 version of the UAGA contained no provision
allowing non-consensual removal of any body part by a medical
examiner or coroner. Later, ten states, including Michigan, adopted
the section allowing non-consensual corneal removal so long as
the Medical Examiner did not know of an objection. Twenty-three
states have adopted the 1987 UAGA allowing a medical examiner
or coroner to remove any body part for transplantation, provided
there has been a reasonable effort to locate the next of kin and
inform them of their option to donate tissue.

‘© For a synopsis of the state laws on organ and tissue procurement, see
Appendix 3.

11

Petitioners mislead by asserting that fifty states have adopted
“some form of the UAGA” without identifying the significant
disparities between the editions of such Acts. They further
mislead by asserting that “encouraged volunteerism’... has
generally been acknowledged as a failure.” Ibid., p 22. Indeed,
the Prefatory Note to the 1987 UAGA cites the following among
the “key problems that hinder organ donation”:

“Failure to systematically approach family members
concerning donation.

“Failure to communicate the pronouncement of death
to next of kin.

“Failure to obtain adequate informed consent from
family members.” ULA ANAT GIFT 1987 Ref, citing
The Hastings Center Report, Ethical, Legal and Policy
Issues Pertaining to Solid Organ Procurement: A Report
of the Project on Organ Transplantation, 1985.

In addition, the 1987 UAGA includes required request provisions
to address these deficiencies. Far from rejecting familial consent
as an impediment to organ procurement, the 1987 UAGA more
strongly endorses and encourages it as a means of increasing the
supply of organs and tissue for transplantation than any prior
version. As noted in Perry v St. Francis Hospital, supra, at
1559-1560, non-consensual taking of tissue and organs at medical
examiner autopsies “is not conduct... that publically encourages
the making of anatomical gifts or that protects and balances the
conflicting interests ‘consistent with prevailing customs and desires
in this country.’ 8A U.L.A. 15.”

Petitioners’ argument that the UAGA supports
non-recognition of property rights in a decedent's body is
contradicted by its evolution. UAGA (1987), together with the
federal law requiring request for organ and tissue donation
(infra), spells the end of “conscription of organs” as advocated by
Petitioners.

12

2. Federal Policy Mandates Request and Consent.

Petitioners’ most errant and misleading argument asserts
that recognition of survivors’ property interests in decedents’
bodies will adversely impact on national law. (Petition, pp 22-26.)
As a matter of fact and law, the federal government has established
a national policy requiring that next of kin be informed of their
option to donate organs and tissue from deceased family members
and that their consent be obtained.

A National Task Force on Organ Transplantation was
created pursuant to 42 USC 274d and assigned to report to
various congressional committees on such subjects as “public and
private efforts to procure human organs for transplantation”, and

“identification of factors that diminish the number of organs
available”. (Report of the Task Force on Organ Transplantation,
April 1986, xix.) Following an extensive study, the Task Force
made recommendations which included the following:

“1. To facilitate organ donation the Task Force
recommends:

States enact legislation requiring coroners and medical
examiners to give permission for organ and tissue
procurement when families consent unless the
surgical procedure would compromise medicolegal
evidence. Further, the legislation should (1) require
coroners and medical examiners to develop policies
that facilitate the evaluation of all nonheart-beating
cadavers under their jurisdiction for organ and tissue
donation, and (2) provide the next-of-kin with the
opportunity to consider postmortem tissue donation.
The Task Force further recommends that coroners
develop agreements with local tissue banks to help
implement these policies.

“2. To facilitate the identification of potential donors
and to provide next-of-kin with appropriate
opportunities to donate organs and tissues, the Task

Force recommends that:

13

Hospitals adopt routine inquiry/required request policies
and procedures for identifying potential organ and
tissue donors and for providing next-of-kin with
appropriate opportunities for donation.

The Joint Commission on the Accreditation of Hospitals
i develop a standard that requires all acute care hospitals
to both have an affiliation with an organ procurement
agency and have formal policies and procedures for
identifying potential organ and tissue donors and for
providing next-of-kin with appropriate opportunities
for donation.

The Health Care Financing Administration incorporate
into Medicare conditions of participation for hospitals
certified under subpart U of the Code of Federal
Regulations, a condition that requires hospitals to have
routine inquiry policies.
All state legislatures formulate, introduce, and enact
The Commission for Uniform State Laws develop
model legislation that requires acute care hospitals to
develop an affiliation with an organ procurement agency
and to adopt routine inquiry policies and procedures.”
j (Task Force Report, supra, pp 2-3.)
Contrary to Petitioners’ argument that national policy favors
non-consensual tissue removal/conscription of organs, the Task
Force said:

“Although there are recurring proposals to extend
presumed consent from corneas to other tissues and
vascularized organs, both consensus derived from
experts in the field and public opinion polls sow that
there is little support for this mechanism as a way of
increasing the availability of donor organs. It is clear
that potential organ donors and their families want to

14

continue to be the primary decisionmakers. Thus, the
Task Force believes that present efforts should focus
on enhancing the voluntary system rather than on
reducing the role of actual consent.” Ibid., pp 30-31.

Congress has responded favorably to the Task Force Report.

“Following the recommendations of the Task Force,
Congress extended the statutory underpinnings of
federal policy on organ transpiantation in 1986 by
establishing the requirement that a hospital have a
written protocol for making routine inquiries of potential
organ donors as a condition for participation in
Medicare. Congress also required that hospitals
conducting organ transplants be members of the Organ
Procurement and Transplantation Network in order to
participate in Medicare or Medicaid. It further required
that in order for organ procurement organizations to be
reimbursed for procurement costs, they must compiy
with the provisions of the 1984 legislation and be
members of the OPTN.” (Journal of Health Politics,
Policy and Law, Vol. 14, No. 1 (1989), pp 206-207,
citing Pub. L. No. 99-509, sec. 9-318; 42 USC 1320b-8.)

“... all hospitals participating in Medicare are now
required to establish a written policy of required request
to ensure that all prospective donors (i.e. individuals
known by the hospital to be dying) or their next of kin
are asked about their willingness to donate organs for
transplantation.” [bid., p 210.

Within the past year, Congress has directed the Office of
Technology Assessment to conduct a study on the effect of
requiring hospitals to affiliate with Organ Procurement Agencies
in their service area on the efficacy and fairness of organ
procurement and distribution. Pub. L. No. 103-432, Title I, sec.
155(b).

It must be concluded that to the extent the federal
government has established policies regarding procurement of

tissues from deceased persons for transplantation purposes, those
policies attempt to balance each of the following values:

15

“Saving lives and improving the quality of life.
“Respecting individual autonomy.

“Promoting a sense of community through acts of
generosity.

“Showing respect for the decedent.

“Showing respect for the wishes of the family.” (Task
Force Report, supra, p 28.)

As noted by the Task Force, Petitioners’ zealous attempt to
increase the supply of corneas non-consensually contravened all
but the first of these values and Plaintiffs’ opposition therefore
was readily foreseeable. Ibid.

Recognition that a survivor's interest in the body of a
deceased loved one warrants due process protection is consistent
with the values expressed above and with the developing national
policy requiring knowing and voluntary consent in making organ
and tissue donation. Without consent, tissue harvesting cannot be
said to be: donative.

Ill
CONCLUSION

The foregoing has shown that the decision of the Sixth Circuit
was clearly correct in finding that Michigan law grants survivors of
deceased persons sufficient interests in their bodies to warrant
due process protection. Being a matter of interpreting state law,
this court should be loathe to grant certiorari to further review
such interpretation. Beyond that, it appears that the developing
law and policy concerning organ and tissue donation respects and
reveres the rights of such survivors as these Plaintiffs.

Given the developments, especially in the federal law requiring
request and consent for organ and tissue harvest on pain of losing
Medicare funding, it can be predicted that few, if any, other
medical examiners and hospitals will involve themselves in acts of
non-consensual tissue harvest as occurred here. Certiorari ought

16

not to be granted in a case presenting no general questions likely
to recur in the future. Watt v Alaska, 451 US 259, 273; 101 S Ct
1673; 68 L Ed 2d 80, 93 (1981).

For all of these reasons, the Petition for Certiorari herein,

ought to be denied.

Respectfully submitted,

Kenneth K. Wright (P29445)
Counsel of Record

John W. Grigg (P37424)
Seward, Tally & Piggott, P.C.
1009 Washington Avenue
Bay City, MI 48708

(517) 892-6551

Dated: October 11, 1995

App. 1-1

january 14, 1988

Dr. M. B. Goldberger
662 Lakewood Circle West
Delray Beach, Florida 33445

Dear Dr. Goldberger:

As per our telephone conversation on January 13, 1988, I am
sending you a proposed protocal for your consideration and
evaluation. I would, of course, appreciate any input as to how the
whole process could be done more efficiently or expeditiously.

As I have stated to you on the phone, the Mid Regional Tissue
Center will pay the total cost for the following expenses (expenses
are based on per case):

Ambulance (from hospital to funeral home)..... $ 40.00
Use of prep room at the funeral home ......... 125.00
Supplies (surgical/non surgical)................. Unknown
UPS (Toxocology, etc.).........0.0.cceceeeeeees 10.00
Personnel:

Pathologist performing autopsy (Dr. Hines) ..... 75.00
SE tad dio abn ihielinknsbeesentadesen tess es 17.00
Rhea ch 40040 44460046 h0s occdeereen es 24.00
ee eS Seen eer eee 27.00

Minimum total cost per case .............. $318.00

Of course, there has to be several conditions to this agreement, as
it would not be cost effective for us to do otherwise:

1. Medical Examiner cases which come from another county
(i.e. Tuscola County) are responsible to pay Dr. Hines his

professional fee for autopsies. (I have already spoken to Dr.
Hines about this and he agrees.)

2. Mid Regional Tissue Center will not subsidize costs for any
medical examiner cases in which tissue has been previously
removed by any of the three following organizations:

App. 1-2

A. OPAM (Organ Procurement Agency of Michigan, located
in Ann Arbor.)

B. MEB (Michigan Eye Bank, located in Ann Arbor.)

C. Regional Tissue Center (located at Sparrow Hospital in
Lansing.)

1213 S Euclid
Bay City, Michigan 48706
517/684-4240
A Non-Profit Michigan Corporation

January 14, 1988
Dr. Goldberger
Page 2

3. If we do not get any tissue donation from a medical
examiner case, the county pays Dr. Hines (or any other
pathologist doing the autopsy) his professional fee and the
Mid Regional Tissue Center will pick up the rest of the
expenses. (This rarely happens because we usually get at

least the corneas.)

Dr. Hines and myself have discussed this program in great detail
over the last three-four months. We both agree that there are
several aspects to this program which would be more beneficial to
the county and to the Mid Regional Tissue Center, if the medical
examiner system was moved out of the hospitals:

1. Immeasurable public service being performed, in that such
needed human tissue would no longer be wasted. (Due to

hospital politics.)
2. Reduction of cost in running the medical examiner system.

Possibly the money saved could be used to start other
needed medical programs in the county.

App. 1-3

I anxiously await the hear from you and hope that we could start
this program as soon as possible. Thank you for your time and
consideration.

Sincerely,

Armando Herrera
Chief Executive Officer
Mid Regional Tissue Center

1213 S Euclid
Bay City, Michigan 48706
517/684-4240
A Non-Profit Michigan Corporation

App. 2

Saginaw County Medical Examiner System
1600 N. MICHIGAN AVENUE-SAGINAW, MICHIGAN 48602
TELEPHONE: (517) 771-0819

May 4, 1988

Armando Herarra
1213 S. Euclid
Bay City, MI 48706

Dear Mr. Herarra:

In accordance with our numerous conversations, it has now been
determined for medical examiner cases of Saginaw County, that
you will be responsible for the cost of:

Transportation to the morgue

Dictating of autopsy reports

Cost of the deiner

Pathologist’s fee, (all if transplant tissues are recovered or

one-half if not recovered).
If there are any questions, please contact me.
Sincerely,

M. B. Goldberger, D.O.
Medical Director

MBG/dmt

eT RNa emt A PTT acer nD he es lt EE pea a A lt Di ee ee ee ee ae —

App. 3-1

ORGAN PROCUREMENT LAWS OF THE STATES

The following fourteen (14) states have enacted the UAGA 1968,
which does not have a non-consensual medical examiner organ or
tissue removal provision:

I oc oe Code 1975, §§ 22-19-40 et seq.
MN es oes ctw pas AS 13.50.010 et seq.

NS e ieee Hess an I.C.A. § 142A.1 et seq.

MINS Dds wikis Cieces scans K.A.S. 65-3209 et seq.
Ses at eeeryec ss LSA-R.S. 17:2351 et seq.
ER hasta basccvesinues. 22 M.R.S.A. §§ 2901 et seq.
EES eg ara an re V.A.M.S. §§ 194.210 et seq.
IN a Poe cdeswin R.R.S.1943, §§ 71-4801 et seq.
WOE IC cis cuss ciechess N.J.S.A. 26:6-57 et seq.

PO I onesie 6b kan cons NMSA 1978, §§ 24-6-1 et seq.
Riso indsans ky eon sas ORS 97.250 et seq.

South Carolina.............. Code 1976, §§ 44-43-310 et seq.
South Dakota............... SDCL 34-26-20 et seq.

bh | ACNE le nN isp ame W.S.1977, §§ 35-5-101 et seq.

The following nine (9) states have adopted the amended UAGA
allowing non-consensual corneal removal at Medical Examiner or
coroner autopsies provided there is no known objection by the
next of kin, ie. the “induced ignorance” to which Brotherton
referred:

Connecticut ................ C.G.S.A. § 19a-281

PN is Hvis Gece DE ST TI 29, $4712

SOI i ky wre ws bans «hs 9 GA ST 31-23-6

ee eee KRS 311.165 et seq., the
exception being at § 311.187

ce. Oe eee MCLA 333.10101 et seq., the

exception being at 333.10202
North Carolina.............. G.S. §§ 130A-402 et seq.

App. 3-2

po RAS ra Te Li teat hha R.C. §§ 2108.01 et seq., which
retains the provision found
unconstitutional in Brotherton.
Ohio has since added §2108.021
requiring hospitals to adopt
required request protocols.

NR a 5 eae od saa pd Tex Health & S § 693.012

ok ee ee Code 16-19-1 et seq., the
exception being at 16-19-3a.

The following twenty-three (23) states have adopted the UACA
1987, which requires that medical examiners or coroners ascertain
whether the decedent expressed intent to make an organ or tissue
donation, obtain consent from next of kin, or make a reasonable
effort to contact the next of kin, inform them of their option to
make a donation, and obtain their consent before removing any
organ or tissues.

I ak ness oe eto A.R.S. § 36-851 — but only
when the motor vehicle division
is closed and after due diligence
next of kin cannot be contacted.

NE Bi os ext Sawkatas A.K.A. §§ 20-17-601 et seq.
ens 5 Sead a See West's Ann. Cal. Health & Safety
Code, §§ 7150 et seq., with

specific requirements as to what
reasonable effort shall entail,
including duration, generally 12
hours, but less for corneas and
pituitaries.
Ce a er eee C.R.S.A. § 30-10-620 —
requiring reasonable attempts to
contact for a reasonable time.

ee ee Ne aes HRS $§ 327-1 et seq.
GE cia Gaveskwiteiudia tes LLC. §§ 39-3401 et seq.

App. 3-3

AD aA pen eet Bc, IN ST 36-2-14-19 — requiring
reasonable attempt to contact
next of kin for 6 hours.

WUNB: 5 co tesn's cw tanta MA-ST 113 §14 — requiring
one (1) hour good faith effort to

notify next of kin.

Massachusetts............... M.G.L.A. 113 § 14 — requiring
one (1) hour good faith effort to
notify next of kin.

Minsiostle 6.5. .207 AGM M.S.A. §§ 525.921 et seq.

| Ee ater, - Spent MCA 72-17-101 et seq.

TIN, sii copii ois same NRS 451.500 et seq.

New Hampshire ............ NH ST § 291-A:7-b with limited
immunity.

CUI 4 oo Sn eaees cae 63 O.S.A. § 2210.1

North Dakota............... NDCC 23-06.2-01 et seq.

Pomenneess sisi. Co. es 20 Pa. C.S.A. § 8641

SE SE 5 Soe cee G.L. 1956 §§ 23-18.6-1 et seq.

TOUR = is corinne cis T.C.A. § 68-30-204 — effort to

contact next of kin shall continue
until further delay would violate
existing medical standards.

CGN... vs aan eaeactes see U.C.A. 1953, 26-28-1 et seq.
WOO se sckescaeceee ees 18 V.S.A. §§ 5238 et seq.
VINEE: 6. sca sieges send Code 1950, §§ 32.1-289 et seq.
We ioe. OC aah West’s R.C.W.A. 68.50.500

et seq.

Wren icc ek cose chee W.S.A. 157.06

App. 3-4

The remaining four (4) states offer even greater protection to the
rights of next of kin than the UAGA 1987. Notable is the extensive
revamping of Florida statutes and regulations since the decision in
Florida v Powell, supra, which would specifically preclude the

acts underlying that case or the present action.

I oo es cv dee

Se Se et eee

Fl. Legis. 95-423 (eff. 6/18/95) —
amended or added numerous
provisions, creating a state organ
and tissue donor registry,
requiring every hospital to check
with the registry and/or obtain
consent from next of kin before
any organ or tissue removal, and
for certification of all organ and
tissue procurement agencies. 11
FL ADC r. 11G-1 prohibits a
medical examiner from allowing
an organ or tissue procurement
agency to provide employees or
pay the salaries of any members
of a medical examiner's office.
59 FL ADC r. 59A-1 defines
“donation” as “the free and
voluntary gift of one or more
organs or tissues for the purpose
of medical research or
transplant.”

IL St Ch 755 §55/1 — Upon
request from specified entities,
coroner or medical examiner
may remove cornea for
transplant after “reasonable good
faith effort” to contact next of
kin.

App. 3-5

ne) errs Code 1972 § 41-61-71 —
requires consent or failure to
determine next of kin after
reasonable effort. Perhaps
following the suggestion in the
Duke University Journal of
Health Politics, Policy and Law,
Vol. 14, No. 1, Spring 1989, pp
191-227, §41-39-9 allows a
person to contract to make an
organ or tissue donation after
death. Revocable, provided seller
repays monetary consideration
plus interest at six percent (6%).

apt . ., EERE TEER TTS NY Pub. Health §4222 — grants
immunity to coroner or medical
examiner as to cornea or
pituitary removal only when
consent has been obtained.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2210%3A2. Public record. Not legal advice.