Petition for Writ of Certiorari — Sathyavaglswaran v. Newman

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Supreme Court Us

FILED

No.___Q2 423 SEP | 2 2002

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

L. SATHYAVAGLSWARAN, M.D. IN HIS

OFFICIAL CAPACITY AS CHIEF MEDICAL

EXAMINER-CORONER OF THE COUNTY OF LOS

ANGELES, AND ANTHONY T. HERNANDEZ, IN HIS

OFFICIAL CAPACITY AS DIRECTOR OF THE COUNTY

OF LOS ANGELES CORONER'S OFFICE AND COUNTY

OF LOS ANGELES DEPARTMENT OF CORONER,

Petitioners,

ROBERT NEWMAN, AS FATHER AND NEXT OF KIN

OF RICHARD A. NEWMAN AND BARBARA OBARSKI,

AS MOTHER AND NEXT OF KIN OF KENNETH S.

OBARSKI, INDIVIDUALLY AND ON BEHALF OF

ALL OTHER SIMILARLY SITUATED INDIVIDUALS,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MUSICK PEELER & GARRETT LLP

ROBERT L. DICKSON (State Bar #36696)

CHERYL A. ORR (State Bar #132379)

Counsel of Record

One Wilshire Boulevard, Suite 2000

Los Angeles, California 90017

Telephone: (213) 629-7600

Facsimile: (213) 624-1376

Attorneys For Petitioners

L. Sathyavaglswaran, M.D., et al.

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Is the next-of-kin’s right to possess a relative’s dead

body for burial or other disposition, treated under Califor-

nia law as a “quasi property” interest, a “property interest”

within the meaning of the Fourteenth Amendment of the

United States Constitution, such that the next-of-kin may

state a claim for deprivation of their property without due

process under 42 U.S.C. section 1983?

If the next-of-kin’s interest in a relative’s dead body is

constitutionally protected, under what circumstances. if

any, will a taking without a pre-deprivation hearing be

excused or justified?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... ...:00s:0cccsesssessectosesscnsceoes i

TP FE BUTTER oo ivviniciesnecesinnsesdebanedeauesness ili

PETITION FOR WRIT OF CERTIORAR] ................ 1

Fe Ree IIT 0 cintsnscsebonhecielcdansstaskisanscanieaanmiiede 2

FF EEI BIE sivdsincstenirieeniekemeeaaae 2

STATUTES INVOLVED IN THIS CASE .................. 3

STAT SRORNEE © GPM RRM CPM ovccesksssvpussneusessnciovssoatens 12

REASONS FOR GRANTING THE WRIT ................. 13

I. There Is A Conflict Between The Federal And

State Courts To Address The Issue................ 13

II. The Decision Improperly Elevates To

Constitutionally Protected Status A “Right”

That Is Not Recognized As A True Property

Interest Under California Law And

Undermines The State’s Ability To Regulate

The Disposition of Biologic Material And

EPOOE TIGGIOG occscisicciemipnineoniasiienagaee 15

III. The Decision Will Promote Federal Claims Based

Upon Conduct Expressly Authorized Under State

Tissue And Organ Removal Statutes, Including

The Uniform Anatomical Gift Act As Adopted In

The States, Thereby Undermining The States’

Strong Public Health Interest In Favor Of

PRIDE TI cies kinncionnieccnmndennemmnianes 20

IV. If Nothing Else, This Court Should Address

The Proper Due Process Inquiry To Take

Place In The Proceedings Below .................... 24

COL ATTIIIEN ses nisuecseioneicopuasenepanuenieiieaumaendalnne 27

TABLE OF AUTHORITIES

Page

CASES

Board of Regents v. Roth, 408 U.S. 564 (1972)..............68. 16

Brotherton v. Cleveland, 923 F.2d 477 (6th Cir.

a iil wuauansenuenacannnanuncaeense 14

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

cea umigeadnravanionbabeetioknnns 16

Crocker v. Pleasant, 778 So.2d 978 (Fla. 2001) ..............6. 14

Dampier v. Grace Hospital Corp., 233 Mich. App.

Le sc caks baddansanabe<heotevonesbannscnes 14

Donaldson v. Lungren, 2 Cal. App. 4th 1614, 4

ad, BREE, BE BO (IGOR) .....0....00ssccsreerirscsessosecsssorsevessssoness 16

Enos v. Snyder, 131 Cal. 68, 63 P. 170 (1900) ................5. 16

Georgia Lions Eye Bank, Inc. v. Lavant, 225 Ga. 60,

RED CER BUDD, cc caccscussevspannssesssensiecanceensnssesss 14

Huntly v. Zurich Gen’l Acc. & Liab. Ins. Co., 100

Cal. App. 201, 280 P. 163 (1929) ............ceeeeeeeeeeetereeeees 16

Moore v. Regents of the University of California, 51

Cal. 3d 120, 271 Cal. Rptr. 146 (1990)............... 17, 18, 20

Ramirez v. Health Partners of Southern Arizona,

193 Ariz. 325, 972 P.2d 658 (Ariz. App. 1998) ............... 19

Sinai Temple v. Kaplan, 54 Cal. App. 3d 1103, 127

Cal. Rotr. 80 (1976)...................csssscscossssereseesessssssensesevens 16

State v. Powell, 497 So.2d 1188 (Fla. 1986)............... ee 14

Whaley v. County of Tuscola, 58 F.3d 1111 (6th Cir.

TABLE OF AUTHORITIES - Continued

Page

STATUTES

BE UL.CA. F TDG Ce BG) ncenescivncencsecccvsecincnsnocenssesven 2

43 U.3B.C.A. § SIGS (WOE TGS) qn .csesciccesssescccseseseees 11, 12, 17

42 U.S.C.A. § 1983 (West Supp. 2002).................00.... passim

Cal. Gov’t Code § 27491.41 (West Supp. 2002).................. 17

Cal. Gov’t Code § 27491.45 (West Supp. 2002)............ 10, 17

Cal. Gov’t Code § 27491.47 (West 1988).................... passim

Cal. Health & Safety Code § 7050.5 (West Supp.

i ectitcoencices-chcaaidsceiblasdincapiiesisuainleg manasa aunts iii oa ors, 17

Cal. Health & Safety Code § 7051 (West Supp.

2 ERAS SSA RD EA NAAN AD re MOR Be tua Ta 17

Cal. Health & Safety Code § 7052 (West Supp

SPOTTED iccnviascsibniseepupnarcitincencicenicedatasidiemant aaama meade eas 17

Cal. Health & Safety Code § 7054 (West Supp

ID a tantahsencnsanintabaspehaatinabcaesspseaianinitn tka ee andak 17

Cal. Health & Safety Code § 7054.1 (West Supp

BD ctnesivsiveticsend:secnsenattitintvpptanidaaiain tidetidniaantuatcor Munna aedeates 17

Cal. Health & Safety Code § 7054.4 (West Supp

ee nacarcavnincbitiokthaislinasteianaMinsnc ubdammtain oes 17, 18

Cal. Health & Safety Code § 7055 (West Supp

TED isin cnsniinispaninsctanntnediburnasiansaeunicamimnaaenmammaaiie. 17

Cal. Health & Safety Code § 7100 (West Supp

i stnandancosbancasns casascnenenne:datisal pe eaienieinannamntaiabsaadl 6

Cal. Health & Safety Code § 7102 (West 1970)................. 16

Cal. Health & Safety Code § 7150.5 (West Supp.

Ne eee

ee ae.

TABLE OF AUTHORITIES - Continued

Page

Cal. Health & Safety Code § 7150.5(h) (West Supp.

|... caceasatlcaueseueieadnninestousaentucnsesepaiatatiaaekin 7, 22

Cal. Health & Safety Code § 7150.5(/) (West Supp.

BID)... wesvaconcvncvascesecovessenseaneonstsntetensstainhviaesnecntiiniasmentanans 7

Cal. Health & Safety Code § 7151 (West Supp.

i TE RET ENT MR NR 5, 7, 8, 9

Cal. Health & Safety Code § 7151(a) (West Supp.

- dcadeneucdliviavesvnctantasmusavansenedensinhensaabainastn 8

Cal. Health & Safety Code § 7151.5 (West Supp

NS... ccckccasevdecceansbacpussacuneswsncuennbenceibessonmastattnninianiats 4

Cal. Health & Safety Code § 7151.5(a) (West Supp

ET) __... .. ... ceanenniaceasbesinentenndeasecennsnmenasagnminmmaniaD: 9

Cal. Health & Safety Code § 7152.5 (West Supp

ID)... _.2. «. scisdinsiamevenmaenanseetoanaonontbvescsmmennaaiuabensanetattd 9

Cal. Health & Safety Code § 7155 (West Supp.

OT, ...... uc cincesvsnncseanntnbeqsascintaseenesannetgnnbiaseaueaaanita 11,17

Cal. Health & Safety Code § 7155.5(c) (West Supp.

I) |. . |. ccsscabenckaonswacsendvebsenenssesebacboubeecbanteeremnaentts 10

Ind. Code Ann. § 36-2-14-19 (Michie 2002) .............:::eeeee 21

Mich. Comp. Laws § 333.10202 (2002)...........:::cccceeeceeeeees 21

Miss. Code Ann. § 41-61-71 (2001) ..........cccceceeeeeeeeeeeeeeeeees 21

N.C. Gen. Stat. § 130A-391 (2000).............::ecceeeeeeeeeeeeeeeees 21

Ohio R. Code § 2108.60 (Anderson 2002) .............::eceeeeeeees 21

Okl. Stat. Ann., tit. 63, § 2210.1 (2002) ...........eeeeeeeeeeeeeeees 21

20 Pa. Cons. Stat. § 8641 (2001) ............:cccceeeeeeeeeeeeseeeeeneees 21

eg ee

TABLE OF AUTHORITIES — Continued ;

OTHER

Unif. Anatomical Gift Act (1987), 8 U.L.A. 19 (West

Be Gs PN, eR sctiiccscnsckinctsnaapuseccesceckevtaecleensenl 21, 22

a A te tte ae .

Pe ee

PETITION FOR WRIT OF CERTIORARI

L. Sathyavaglswaran, M.D., in his official capacity as

Chief Medical Examiner-Coroner of the County of Los

Angeles, Anthony T. Hernandez, in his official capacity as

the Director of the County of Los Angeles Coroner’s Office,

and the County of Los Angeles, Department of the Coroner

(the “Coroner Defendants” or “Petitioners”) respectfully

pray a writ of certiorari issue to review the judgment and

opinion of the Ninth Circuit entered in this proceeding on

April 16, 2002.

The case involves a novel and important issue;

whether the right existing under California state law for

next-of-kin to possess a relative’s dead body for burial or

other disposition is a sufficient property interest to war-

rant due process protection under the Fourteenth Amend-

ment of the United States Constitution, thus entitling the

next-of-kin to state a claim under 42 U.S.C. section 1983.

By holding that it is, the decision by the Ninth Circuit

sides with the Sixth Circuit, which addressed Ohio and

Michigan state law on the subject of property rights in

dead bodies. The federal Circuit Court of Appeal decisions

on the subject conflict with decisions from the Georgia and

Florida supreme courts which have held that the legal

interests of the next-of-kin in those states were not of

constitutional dimension. Review should be granted to

address this constitutional issue and resolve the conflict

between state and federal decisions on the subject.

The issue is particularly important because investing

next-of-kin with a property interest of constitutional

dimension in their relatives’ dead bodies will have a deleteri-

ous impact on organ and tissue donation by undermining

the immunity provisions of organ and tissue donation

statutes enacted on the state level nationwide.

OPINIONS BELOW

The opinion of the District Court is unreported. (App.,

infra, C-1.) The opinion of the United States Court of

Appeals for the Ninth Circuit that gives rise to this peti-

tion is published and is reported at 287 F.3d 786 (April 16,

2002). (App., infra, A-1 through A-29.) Panel rehearing

and/or rehearing en banc was denied by the Ninth Circuit

on June 14, 2002. (App., infra, D-1 through D-2.)

JURISDICTION

The United States District Court for the Central

District of California dismissed the Complaint against the

Coroner Defendants for failure to state a cause of action

under 42 U.S.C. section 1983. (App., infra, B-1 through B-

3.) Respondents appealed that decision. On April 16, 2002,

the Ninth Circuit entered its judgment and opinion revers-

ing the District Court. The order denying the Coroner

Defendants’ timely filed Petition for Panel Rehearing

And/Or Rehearing En Banc was entered June 14, 2002.

(App., infra, D-1 through D-2.) Pursuant to Supreme Court

Rule 13.1, this petition has been filed within 90 days of the

denial of rehearing.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. section 1254(1).

STATUTES INVOLVED IN THIS CASE

The United States Constitution, amend. XIV, section 1

states in pertinent part:

... No State shall make or enforce any. law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protec-

tion of the laws.

Title 42 U.S.C. section 1983 reads as follows:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the ju-

risdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress....

42 U.S.C.A. § 1983 (West Supp. 2002).

Former California Government Code section 27491.47,

in effect at the time relevant to this dispute, read as

follows:

(a) Notwithstanding any other provision of law,

the coroner may, in the course of an autopsy, re-

move and release or authorize the removal and

release of corneal eye tissue from a body within

the coroner’s custody, if all of the following condi-

tions are met:

(1) The autopsy has otherwise been authorized.

(2) The coroner has no knowledge of objection to

the removal and release of corneal tissue having

been made by the decedent or any other person

specified in Section 7151.5 of the Health and

Safety Code.

(3) The removal of such tissue will not unneces-

sarily mutilate the body, be accomplished by enu-

cleation, nor interfere with the autopsy.

(4) The tissue will be removed by a coroner, li-

censed physician and surgeon, or a trained

transplant technician.

(5) The tissue will be released to a public or

nonprofit facility for transplant, therapeutic, or

scientific purposes.

(b) Neither the coroner nor medical examiner

authorizing the removal of the corneal tissue, nor

any hospital, medical center, tissue bank, storage

facility, or person acting upon the request, order,

or direction of the coroner or medical examiner in

the removal of corneal tissue pursuant to this

section, shall incur civil liability for such removal

in an action brought by any person who did not

object prior to the removal of the corneal tissue,

nor be subject to criminal prosecution for the re-

moval of such corneal tissue pursuant to the pro-

visions of this section. ;

Cal. Gov't Code § 27491.47 (West 1988).

In 1998, the statute was amended and California

Government Code section 27491.47 currently provides:

(a) Notwithstanding any other provision of law,

the coroner may, in the course of an autopsy, re-

move and release or authorize the removal and

release of corneal eye tissue from a body within

the coroner’s custody, if all of the following condi-

tions are met:

(1) The autopsy has otherwise been authorized.

(2) The coroner has no knowledge of objection to

the removal and release of corneal tissue having

been made by the decedent or any other person

specified in Section 7151 of the Health and

Safety Code and has obtained any one of the fol-

lowing:

(A) A dated and signed written consent by the

donor or any other person specified in Section

7151 of the Health and Safety Code on a form

that clearly indicates the general intended use of

the tissue and contains the signature of at least

one witness.

(B) Proof of the existence of a recorded tele-

phonic consent by the donor or any other person

specified in Section 7151 of the Health and

Safety Code in the form or an audio tape re-

cording of the conversation or a transcript of the

recorded conversation, which indicates the gen-

eral intended use of the tissue.

consent by the donor or any other person speci-

fied in Section 7151 of the Health and Safety

Code, witnessed and signed by no less than two

members of the requesting entity, hospital, eye

bank, or procurement organization, memonializ-

ing the consenting person’s knowledge of and

consent to the general intended use of the gift.

The form of consent obtained under subpara-

graph (A), (B), or (C) shall be kept on file by the

requesting entity and the official agency for a

minimum of three years.

(3) The removal of the tissue will not unneces-

sarily mutilate the body, be accomplished by enu-

cleation, nor interfere with the autopsy.

(4) The tissue will be removed by a coroner, li-

censed physician and surgeon, or a trained

transplant technician.

(5) The tissue will be released to a public or

nonprofit facility for transplant, therapeutic, or

scientific purposes.

(b) Neither the coroner nor medical examiner

authorizing the removal of the corneal tissue, nor

any hospital, medical center, tissue bank, storage

facility, or person acting upon the request, order,

or direction of the coroner or medical examiner in

the removal of corneal tissue pursuant to this

section, shall incur civil liability for the removal

in an action brought by any person who did not

object prior to the removal of the corneal tissue,

nor be subject to criminal prosecution for the re-

moval of such corneal tissue pursuant to the pro-

visions of this section.

Cal. Gov't Code § 27491.47 (West Supp. 2002).

California Health & Safety Code section 7100 reads as

follows:

The right to control the disposition of the re-

mains of a deceased person, unless other direc-

tions have been given by the decedent, vests in,

and the duty of interment and the liability for

the reasonable cost of interment of such remains

devolves upon the following in the order named:

(a) The surviving spouse.

(b) The surviving child or children on the dece-

dent.

(d) The person or persons respectively in the

next degrees of kindred in the order named by

the laws of California as entitled to succeed to

the estate of the decedent.

(e) The public administrator when the deceased

has sufficient assets.

Cal. Health & Safety Code § 7100 (West Supp. 2002).

California Health & Safety Code section 7150.5(h)

provides:

An anatomical gift that is not revoked by the do-

nor before death is irrevocable and does not re-

quire the consent or concurrence of any person

after donor’s death.

Cal. Health & Safety Code § 7150.5 (West Supp. 2002).

California Health & Safety Code section 7150.5(/)

provides:

Any signed statement that is in compliance with

this Chapter, or a driver’s license or identifica-

tion care that meets the requirements for valid-

ity set forth in subdivision (b) of Section 12811 of

the Vehicle Code or subdivision (b) of Section

13005 of the Vehicle Code, shall be honored and

no further consent or approval from the next of

kin or other person listed in subdivision (a) of

Section 7151 shall be required.

Cal. Health & Safety Code § 7150.5 (West Supp. 2002).

California Health & Safety Code section 7151(a)

provides:

(a) Except as provided in Section 7152, any

member of the following classes of persons, in the

order of priority listed, may make an anatomical

gift of all or part of the decedent’s body or a

pacemaker for an authorized purpose, unless the

decedent, at the time of death, has made an un-

revoked refusal to make that anatomical gift:

(1) The agent under a power of attorney for

health care that expressly authorizes or does not

limit the authority of the agent to make an ana-

tomical gift of all or part of the principal’s body

or a pacemaker.

(2) The spouse of the decedent.

(3) An adult son or daughter of the dece-

dent.

(4) Either parent of the decedent.

(5) An adult brother or sister of the dece-

dent.

(6) Agrandparent of the decedent.

(7) A guardian or conservator of the person

of the decedent at the time of death... .

Cal. Health & Safety Code § 7151(a) (West Supp. 2002).

California Health & Safety Code section 7151.5(a)

states in pertinent part:

(a) Except as provided in Section 7152, the

coroner or medical examiner may release and

permit the removal of a part from a body within

that official’s custody, for transplantation, ther-

apy, or reconditioning, if...

DR ari ae ea oe hn ee CR AE Sic NPE AE ERE we te he Oa * not :

(2) Areasonable effort has been made to lo-

cate and inform persons listed in subdivision (a)

of Section 7151 of their option to make, or object

to making, an anatomical gift. Except in the case

where the useful life of the part does not permit,

a reasonable effort shall be deemed to have been

made when a search for the persons has been

underway for at least 12 hours....

(3) The official does not know of a refusal or

contrary indication by the decedent or objection

by a person having priority to act as listed in

subdivision (a) of Section 7151....

Cal. Health & Safety Code § 7151.5(a) (West Supp. 2002).

California Health & Safety Code section 7152.5 states:

(a) If, at or near the time of death of a patient,

there is no medical record that the patient has

made or refused to make an anatomical gift, the

hospital shall comply with the protocol developed

pursuant to Section 7184.

(d) If, at or near the time of death of a patient,

a hospital knows that an anatomical gift has

been made pursuant to subdivision (a) of Section

7151 or a release and removal of a part has been

permitted pursuant to Section 7151.5, or that a

patient or an individual identified as in transit to

the hospital is a donor, the hospital shall notify

the donee if one is named and known to the hos-

pital; if not, it shall notify an appropriate pro-

curement organization. The hospital shall

cooperate in the implementation of the anatomi-

cal gift or release and removal of a part. ...

Cal. Health & Safety Code § 7152.5 (West Supp. 2002).

California Health & Safety Code section 7155.5(c)

provides:

A hospital, physician, surgeon, coroner, medical

examiner, local public health officer, enucleator,

technician, or other person, who acts in accor-

dance with this chapter or with the applicable

anatomical gift law of another state or a foreign

country or attempts in good faith to do so is not

liable for that act in a civil action or criminal

proceeding.

Cal. Health & Safety Code § 7155.5(c) (West Supp. 2002).

California Government Code section 27491.45 pro-

vides in pertinent part:

(2) Parts of the body ... may be released by the

coroner ... either upon consent of the decedent

or other person, as specified in Section 7151 of

the Health & Safety Code, or after a reasonable

effort has been made to locate and inform per-

sons listed in subdivision (a) of Section 7151 of

the Health and Safety Code of their option to

consent or object to the release, and the appro-

priate person consents or that effort has been

unsuccessful. |

Cal. Gov’t Code § 27491.45 (West Supp. 2002).

California Health & Safety Code section 7155 pro-

vides:

(a) A person may not knowingly, for valuable

consideration, purchase or sell a part for trans-

plantation, therapy, or reconditioning, if removal

of the part is intended to occur after the death of

the decedent. -

(b) Valuable consideration does not include rea-

sonable payment for the removal, processing,

disposal, preservation, quality control, storage,

transplantation, or implantation of a part.

a felony and upon conviction shall be punished

by imprisonment in the state prison for three,

five, or seven years, a fine not exceeding fifty

thousand dollars ($ 50,000), or both.

Cal. Health & Safety Code § 7155 (West Supp. 2002).

42 U.S.C. section 274e states:

(a) Prohibition.

It shall be unlawful for any person to know-

ingly acquire, receive, or otherwise transfer any

human organ for valuable consideration for use

in human transplantation if the transfer affects

interstate commerce.

(b) Penalties.

Any person who violates subsection (a) shall

be fined not more than $ 50,000 or imprisoned

not more than five years, or both.

For purposes of subsection (a) of this section:

(1) The term “human organ” means the

human (including fetal) kidney, liver, heart, lung,

pancreas, bone marrow, cornea, eye, bone, and

skin or any subpart thereof and any other human

organ (or any subpart thereof, including that de-

rived from a fetus) specified by the Secretary of

Health and Human Services by regulation.

(2) The term “valuable consideration” does

not include the reasonable payments associated

with the removal, transportation, implantation,

processing, preservation, quality control, and

storage of a human organ or the expenses of

travel, housing, and lost wages incurred by the

donor of a human organ in connection with the

donation of the organ.

(3) The term “interstate commerce” has the

meaning prescribed for it by section 321(b) of Title

21 [the Federal Food, Drug and Cosmetic Act

§ 201(b)).

42 U.S.C.A. § 274e (West 1991).

STATEMENT OF THE CASE

In a 2-1 published opinion filed April 16, 2002, the

Ninth Circuit held that the next-of-kin of two decedents

properly stated a claim against the Coroner Defendants

under 42 U.S.C. section 1983, for deprivation of their

property without due process under color of state law.

Respondents are the parents of two adults who were

autopsied at the County Coroner’s office after their deaths

and whose corneas were removed without prior notice to or

the consent of Respondents. Respondents sued on behalf of

themselves and all others similarly situated.

At the time of the removal of the corneas from the

decedents in question, California Government Code section

27491.47 expressly authorized the Coroner to remove

corneal eye tissue if the Coroner had no knowledge of any

objection to the removal. The statute was enacted to deal

with a public health crisis; an extreme shortage of corneal

eye tissue for transplantation. In recognition of the medi-

cal need for the corneal eye tissue to be removed, optimally

within six hours of death for the tissue to be useable for

transplantation, the statute did not require the Coroner to

seek out the decedent’s relatives or obtain their express

consent to the removal of the corneal eye tissue. Further-

more, the statute expressly immunized the Coroner from

civil or criminal liability for removal of corneal tissue

under the statute.

The majority decision of the Ninth Circuit concludes

that the Respondents had a sufficient property interest in

the possession of their relatives’ dead bodies to state a

federal civil rights claim for deprivation of their property

without notice by County officials acting under the author-

ity of the state corneal tissue removal statute.

Judge Ferdinand F. Fernandez, dissenting, disagreed.

The dissent concludes that the right of sepulchre or burial

afforded to next-of-kin “on grounds of decency, considera-

tion for others, and pragmatism” is not a property interest

in the dead body itself and is not of sufficient dimension or

character entitled to receive federal constitutional protec-

tion.

REASONS FOR GRANTING THE WRIT

I. There Is A Conflict Between The Federal And

State Courts To Address The Issue

This case involves a novel constitutional issue as to

which there is a conflict between the few federal and state

courts to address the issue.

This is a case of first impression in the Ninth Circuit.

The Sixth Circuit, the only other federa] Circuit Court to

address the issue, has concluded that Michigan and Ohio

law grant to the next-of-kin a property interest of constitu-

tional dimension in a relative’s dead body sufficient to

state a claim under section 1983, in cases challenging a

similar cornea removal statute or seeking damages for the

removal of the corneas without the next-of-kin’s notice and

consent under a cornea removal statute. Whaley v. County

of Tuscola, 58 F.3d 1111 (6th Cir. 1995) (Michigan statute);’

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

statute).

In contrast, the highest courts of Florida and Georgia

have concluded that the next-of-kin have no property

interest of constitutional dimension in a relative’s dead

body under those states’ laws. Georgia Lions Eye Bank,

Inc. v. Lavant, 225 Ga. 60, 335 S.E.2d 127, 128 (Ga. 1985)

(“quasi property” rights are “not ... of constitutional

dimension”); State v. Powell, 497 So.2d 1188, 1191 (Fla.

1986), cert. denied, 481 U.S. 1059 (1987) (“All authorities

generally agree that the next-of-kin have no property right

in the remains of a decedent”); cf: Crocker v. Pleasant, 778

So.2d 978 (Fla. 2001) (allowing a section 1983 claim for

coroner’s burial of dead body without notice and consent of

relatives and distinguishing Powell on the grounds that its

holding was limited to analysis of constitutionality of the

' But see Dampier v. Grace Hospital Corp., 233 Mich. App. 714

(1999) (holding that claim under Michigan Constitution for deprivation

of property without due process failed “because Michigan does not

recognize a property right in a dead body,” despite recognizing that

Whaley had decided otherwise with respect to a federal constitutional

claim).

cornea removal statute and because the intrusion on the

next-of-kin’s rights was far outweighed by public health

interest in cornea transplantation).

This case thus raises the important constitutional

question as to which there is a very significant difference

of opinion; whether an interest recognized by state law,

but which is not recognized under the state common law

as a true “property right,” is entitled to protection under

the United States Constitution and can therefore implicate

liability under the Constitution or federal civil mghts

statutes, such as 42 U.S.C. section 1983.

The Coroner Defendants submit that Judge Fernan-

dez’s Dissenting Opinion, not the Majority Opinion, was

correct in determining that the next-of-kin’s right to

possess a relative’s dead body for burial — referred to as a

“quasi-property” interest under California common law —

is not of constitutional character or dimension and cer-

tainly not a sufficiently substantive right to outweigh the

government's compelling public policy interest in increas-

ing the availability of tissues and organs for transplanta-

tion and promoting tissue and organ donation.

II. The Decision Improperly Elevates To Consti-

tutionally Protected Status A “Right” That Is

Not Recognized As A True Property Interest

Under California Law And Undermines The

State’s Ability To Regulate The Disposition of

Biologic Material And Dead Bodies

As this Court has explained: “Property interests ...

are not created by the Constitution. Rather they are

created and their dimensions are defined by existing rules

or understandings that stem from an independent source

ee ee

such as state law....” Board of Regents v. Roth, 408 U.S.

564, 577 (1972); see also Cleveland Bd. of Educ. v. Loud-

ermill, 470 U.S. 532, 537 (1985).

Under California common law, the rights of next-of-

kin in their relative’s dead body have been extremely

limited. See Sinai Temple v. Kaplan, 54 Cal. App. 3d 1103,

1110, 127 Cal. Rptr. 80, 85 (1976) (next-of-kin’s right exists

“for the limited purpose of determining who shall have its

custody for burial.”); Enos v. Snyder, 131 Cal. 68, 69, 63 P.

170, 171 (1900) (“there is no property in a dead body”).

Although the California common law accorded the rela-

tives the right of custody for burial, the courts have

qualified the next-of-kin’s right as merely a “quasi-

property” right. See, e.g., Sinai Temple, 54 Cal. App. 3d at

1110.

The limited common law right of next-of-kin to a

relative’s dead body has been further restricted by case

law and statutes governing the disposition of dead bodies

and handling of human remains and body parts. See, e.g.,

Cal. Health & Safety Code §§ 7000-7902. For example,

under California law, the Coroner has the discretion to

perform an autopsy without the consent of the deceased's

family. See, e.g., Donaldson v. Lungren, 2 Cal. App. 4th

1614, 1623, 4 Cal. Rptr. 2d 59 (1992) (coroner has duty to

investigate deaths by suicide or homicide and may take

custody of body for autopsy); Huntly v. Zurich Gen'l Acc. &

Liab. Ins. Co., 100 Cal. App. 201, 280 P. 163 (1929). The

Coroner is statutorily entitled to maintain custody over

the body in the case of any death which is the subject of

investigation by the Coroner and is not obligated to

surrender the remains until the conclusion of the autopsy

or medical investigation. Cal. Health & Safety Code

§ 7102. The transportation of the dead and disposition of

remains are specifically regulated. See, e.g., Cal. Health &

Safety Code §§ 7050.5, 7051, 7052, 7054, 7054.1, 7054.4,

and 7055. Likewise, the transfer of body parts for consid-

eration is expressly prohibited under California law, as it

is under federal law. See Cal. Health & Safety Code § 7155

and 42 U.S.C. §274e. Indeed, the Coroner is expressly

authorized to remove body parts or tissue from the deceased

if it is necessary or advisable for scientific investigation and

training in the Coroner’s office (Cal. Govt Code

§ 27491.45), or for investigating infant deaths from “sud-

den infant death syndrome” (Cal. Gov't Code § 27491.41).

As the California Supreme Court previously explained

in Moore v. Regents of the University of California, 51

Cal. 3d 120, 135, 271 Cal. Rptr. 146 (1990), referencing

several statutes dealing with dead bodies and body parts

including former Government Code section 27491.47, the

corneal tissue removal statute at issue here:

[T]he laws governing such things as human tis-

sues, transplantable organs, blood, fetuses, pitui-

tary glands, corneal tissue, and dead bodies deal

with human biological materials as objects sui

generis, regulating their disposition to achieve

policy goals rather than abandoning them to the

general law of personal property. It is these

specialized statutes ... to which courts

ordinarily should and do look for guidance on the

disposition of human biological materials.

Moore, 51 Cal. 3d at 137 (emphasis added) (footnotes

omitted).

The court in Moore went on to conclude that where a

statute expressly regulates the disposition of anatomical

parts, human tissues, and human remains, “the statute

eliminates so many of the rights ordinarily attached to

property that one cannot simply assume that what is left

amounts to ‘property’ or ‘ownership’... .” 51 Cal. 3d at 141

(specifically referring to California Health & Safety Code

§ 7054.4) (emphasis added).

The petitioning Coroner Defendants submit that

respect for those who have lost their loved ones has not

evolved into a “property interest” of sufficient character

under California law to deserve federal constitutional

protection. To the contrary, California law has over the

years restricted and limited the rights of next-of-kin in

dead bodies as necessary to serve other compelling gov-

ernmental interests, including the medical and police

interests in investigating death from unknown or suspi-

cious origins, the public health interest in regulating the

disposition of dead bodies, the societal interest in prohibit-

ing the trafficking in body parts, tissues and organs and,

in the case of former Government Code section 27491.47

here in dispute and Health & Safety Code section 7150, et

seq. (adopting the 1987 version of the Uniform Anatomical

Gift Act (“UAGA”) in California), the public health interest

in promoting tissue and organ donation and transplanta-

tion. Moreover, whatever is left of the common law interest

of the next-of-kin to possess a relative’s dead body after

such regulation simply does not amount to “property” and

is certainly not a property interest of constitutional di-

mension or character.

As the Arizona Court of Appeal put it most candidly in

addressing the state cases relating to the next-of-kin’s

purported “property interest” in a dead body:

In most of these cases, the courts have talked of

a somewhat dubious “property right” to the body

... which did not exist while the decedent was

living, cannot be conveyed, can be used only for

the purpose of burial, and not only has no pecu-

niary value but is a source of liability for funeral

expenses. It seems reasonably obvious that such

“property” is something evolved out of thin air to

meet the occasion, and that in reality the per-

sonal feelings of the survivors are being pro-

tected under a fiction likely to deceive no one but

a lawyer.

Ramirez v. Health Partners of Southern Arizona, 193 Ariz.

325, 332, 972 P.2d 658, 665 (Ariz. App. 1998) (upholding

summary judgment in favor of defense on nexc¢-of-kin’s

claims, including their constitutional claims, relating to

unauthorized removal of relative’s bones for-transplanta-

tion allegedly in violation of UAGA as enacted in Arizona).

A “legal fiction” is not entitled to federal constitutional

protection. As Justice Fernandez’ Dissenting Opinion

correctly recognized, the “quasi property” interest in a

relative’s dead body existing under California law created

“on grounds of decency, consideration for others, and

pragmatism” is insufficient in dimension or character to be

treated as a “property interest” entitled to federal consti-

tutional protection. By affording the interest constitu-

tional weight, the Ninth Circuit has extended to the next-

of-kin a property interest that never previously existed

under California law and is, in fact, incompatible with

existing state statutes regulating dead bodies.

Ill. The Decision Will Promote Federal Claims

Based Upon Conduct Expressly Authorized

Under State Tissue And Organ Removal Stat-

utes, Including The Uniform Anatomical Gift

Act As Adopted In The States, Thereby Un-

dermining The States’ Strong Public Health

Interest In Favor Of Anatomical Gifts

Apart from the conflict in the federal and state deci-

sions on the constitutional dimension of a next-of-kin’s

interest in a dead body, the decision below is of exceptional

importance because of its deleterious impact on the public

policy interest in favor of organ donation underlying the

corneal eye tissue, as well as other organ and tissue

removal statutes enacted in California and virtually every

other state. As the California Supreme Court cautioned in

the Moore case, corneas, tissues, organs and other biologic

matter are sui generis and the absence of any California

case creating liability for the use of such biologic material

by treating it as ordinary chattel or personal property

“raises a flag of caution.” 51 Cal. 3d at 135.

Although the California corneal removal statute in

question has been amended to now require the consent of

next-of-kin prior to the removal of corneal tissue, the

statute was in effect from 1983 until 1998 when it was

amended. Corneal eye tissue removal statutes similar to

the former California statute also continue to exist in

approximately 10 other states. California and other state's

legislatures enacted corneal eye tissue removal statutes

based upon an expressed public health interest allowing

removal of corneal eye tissue after a reasonable, but

unsuccessful, search for the next-of-kin or, like in the case

of former California Government Code section 27491.47,

merely in the absence of any known objection, without

specifically requiring notice and consent of next-of-kin.

See, e.g., Ohio R. Code § 2108.60 (Anderson 2002) (author-

izing removal where no knowledge of an objection); N.C.

Gen. Stat. § 130A-391 (2000) (authorizing removal where

no known objections); Mich. Comp. Laws § 333.10202

(2002) (same).

Some statutes impose both a reasonable attempt to

contact and a no known objection requirement. See, e.g., Okl.

Stat. Ann., tit. 63, § 2210.1 (2002) (authorizing cornea

removal after reasonable attempt to contact next-of-kin and

no knowledge of any objection); 20 Pa. Cons. Stat. § 8641

(2001) (same); Ind. Code Ann. § 36-2-14-19 (Michie 2002)

(imposing a duty to make a reasonable attempt to contact

next-of-kin within six hours of time of death, but allowing

removal of corneas if no knowledge of objection to removal

and donation of corneas); Miss. Code Ann. § 41-61-71

(2001) (authorizing removal after a reasonable attempt to

determine next-of-kin has failed or where there is a belief

that there are no next-of-kin to be contacted). The various

states’ legislatures enacted these “presumed consent”

statutes in recognition of the quick action generally

required to transplant corneal eye tissue successfully.

Corneal removal statutes are not the only statutes

implicated by the decision in this case. A majority of the

states have adopted in whole or substantial part the

Uniform Anatomical Gift Act (““UAGA”), permitting the

removal of organs for donation and transplantation from

decedents. In virtually every state to have adopted the

UAGA, the statute allows for tissue or organ removal

based upon the authority of the donor made while living,

including consent that might appear on the donor’s driver’s

license or registration. See, e.g., Uniform Anatomical Gift

Act (1987) (“UAGA”), 8A Uniform Laws Annotated

(“U.L.A.”) 47 (West 1993) § 5, and annotations thereto.

The donor’s consent is deemed irrevocable under the

UAGA after the donor’s death. UAGA § 2(h), 8A U.L.A. 34.

Under the UAGA, hospitals, medical staff, and coroners

are entitled to rely upon the donor’s consent and no

consent or concurrence is required of any other person,

including next-of-kin. UAGA § 5, 8 U.L.A. 47; see also Cal.

Health & Safety Code § 7150.5(h) (West Supp. 2002).

The coroner is also allowed under the UAGA to permit

the removal of a body part after a reasonable effort “taking

into account the useful life of the part” to locate the

decedent’s medical records for evidence of the donor’s

consent or to inform next-of-kin or other persons entitled

to object under the UAGA. UAGA § 4(a)(2), 8A U.L.A. 43.

As the Comments to Section 4 of the UAGA explain, the

UAGA attempts to balance the societal interest in increas-

ing the size of the donor pool with the family’s interest, but

the balance is weighted in favor of the former interest by

limiting the duty to search based upon “the useful life of

the part.” The limitation recognizes the very short time

available in many cases for the successful recovery of

critical tissue, which in the case of corneal tissue is opti-

mally within six hours of death. UAGA, § 4, Comments, 8

U.L.A. 44-45.

The UAGA, like the California statute at issue here,

also includes an immunity provision that expressly immu-

nizes persons against civil or criminal liability for failure

to discharge one’s duties under the statute, including the

reasonable search and notification of next-of-kin. UAGA

§ 5(f), 8A U.L.A. 47.

The UAGA has been adopted in one form or another in

all states, including California. In general, the states’

legislatures that have adopted the UAGA and related

tissue and organ statutes, including presumed consent

statutes, have affirmatively chosen to weigh the societal

interest in favor of organ donation and increasing the

donor pool over the decedent’s family’s interests.

By holding, as it does, that the next-of-kin have a

property interest in a dead body at the time of their

relative’s death, the Ninth Circuit’s decision in this case

creates a perplexing problem for enforcement of the UAGA

as adopted in the states. If a new “bundle of rights” is

created upon death and vests in a different person, not the

decedent, the UAGA’s treatment of the donor’s consent to

tissue or organ donation as irrevocable may be superflu-

ous. The question becomes not whether the donor con-

sented while alive, but whether the new property owners,

the decedent’s next-of-kin, will consent to deprivation of

their new-found property interest in their relative’s body

to allow tissues or organs to be removed from the body.

The decedent no longer has any interest in that body

because his or her prior interest has been extinguished by

death. According to the Majority Opinion, the property

interest in the dead body of the next-of-kin springs to life

after the relative’s death and is sufficiently deserving of

constitutional protection to require notice to the next-of-

kin and a pre-deprivation hearing before any tissue or

- organ removal can take place, thus giving rise to a cause of

action for damages for the taking of the tissues or organs

without such a pre-deprivation hearing.

The Ninth Circuit’s opinion raises substantial ques-

tions regarding the enforcement of any “presumed con-

sent” provisions of existing state tissue or organ donation

statutes, the ability to rely upon the purportedly “irrevo-

cable consent” of a tissue or organ donor given while alive,

and the ultimate effectiveness of immunity provisions

contained in tissue and organ donation statutes enacted at

the state level, including the UAGA. At bottom, if federal

claims under 42 U.S.C. section 1983 may be brought

against coroners, hospitals and other persons acting under

the authority of tissue and organ removal statutes by

next-of-kin who did not consent to the removal of their

relatives’ tissues or organs, the threat of liability will have

a deleterious chilling effect on organ retrieval and trans-

plantation.

IV. If Nothing Else, This Court Should Address

The Proper Due Process Inquiry To Take

Place In The Proceedings Below

Declining to deem former California Government Code

section 27491.47 unconstitutional on its face, the Majority

Opinion nonetheless determined that the statute “elimi-

nated procedural safeguards” due the next-of-kin. (Opin-

ion, infra, at A-23.) At the same time, the court expressed

the opinion that no constitutionally acceptable post-

deprivation process was available because the former

statute itself expressly immunized the Coroner from any

civil liability for actions taken under the statute. (Id. at

A-24, fn. 16.) Yet, the court inexplicably remanded for

further proceedings to determine whether the Coroner

Defendants’ failure to afford a pre-deprivation hearing to

the plaintiffs in this case was “justified,” concluding:

“[w]hether extraordinary situations justify the failure oi

the coroner to afford a predeprivation hearing turns

on issues of fact that cannot be properly examined at

this stage of the litigation.” (Id. at A-25.) The Majority

25 :

Opinion thus suggests that some “extraordinary” or

“exigent” situations would justify the removal of corneas

without a pre-deprivation hearing.

The Majority Opinion requires the District Court to

make a case-by-case inquiry as to the circumstances

surrounding the cornea tissue removal of each decedent.

Yet, California Government Code section 27491.47 was

expressly enacted because of an extreme shortage of

corneal eye tissue for transplantation and based upon a

legislative finding that “the 24 hour search period required

under the UAGA is not compatible for ‘harvesting’ corneal

eye tissue” and “the optimum time for removing corneal

tissue is within 6 hours of death.” (Appellees’ Supplemental

Excerpts of Record, pp. 10-11.) As a result, the legislature

determined that “no search for the next-of-kin was re-

quired.” (Id.) The exercise of the State’s power to legislate

on the issue under its police power has not been chal-

lenged herein and is not reasonably subject to dispute.

The Coroner Defendants submit that the existence of

“extraordinary” or “exigent” circumstances should be

conclusively determined by the prior legislative determi-

nation of a corneal tissue shortage crisis that necessitated

the enactment of former California Government Code.

section 27491.47. If the legislature’s crisis determination

did not suffice to_justify the Coroner Defendants’ removal

of the decedents’ corneas without the prior consent of their

next-of-kin, what other “justification” may the Coroner

Defendants offer for their conduct in reliance upon the

former statute? Should the requirement of a pre-

deprivation hearing in a particular tissue removal case

turn on the existence of “competing interests” at the time

of removal? If so, will the constitutional violation depend

on the need for the particular type of organ or tissue at the

time of removal or the existence of a particularly compel-

ling transplant candidate in need of the organ or tissue at

that exact time? The Majority Opinion simply offers no

guidance on the issue and federal case law involving

“exigent circumstances” justifying warrantless searches

and seizures hardly provides a useful analogy or an

appropriate legal framework for deciding this unique and

weighty due process issue.

The case-by-case analysis suggested by the court’s

Majority Opinion below appears to devolve upon the

District Court the uncomfortable and improper task of

evaluating decisions involving tissue or organ removal

based upon hindsight. Yet, public health policy regarding

organ and tissue removal and its regulation must be and

should be reserved for the legislative branch and is not a

proper subject for judicial determination.

More importantly, the public policy in favor of organ

donation will be greatly undermined if hospitals and

coroners’ offices have no clear guidelines as to whether a

pre-deprivation hearing or other process is required in

advance of tissue or organ removal and, if not, what

conditions would justify dispensing with a pre-deprivation

hearing in a tissue or organ removal situation. One’s

ultimate liability will depend, not on good faith compliance

with the state tissue or organ removal statute in effect at

the time, but upon a court’s analysis of the federal due

process issue only after a lawsuit is filed. Furthermore,

the existence of immunity provisions in the state organ

and tissue removal statutes will be unavailing in defense

of any federal claims. As a result, there will be a deleteri-

ous chilling effect on the willingness of hospitals and

coroners to engage in any tissue or organ removal out of

fear of civil liability. The life-saving and life-enhancing

benefits from organ and tissue donation will necessarily be

jeopardized.

This Court should address this unconventional proce-

dural due process issue that has ramifications for organ

and tissue donation nationwide.

CONCLUSION

For all the reasons discussed, this petition for certio-

rari should be granted.

DATED: September 12, 2002

Respectfully submitted,

MUSICK, PEELER & GARRETT LLP

ROBERT L. DICKSON

CHERYL A. ORR

Attorneys for Petitioners

L. Sathyavaglswaran, M.D., et al.

A-1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT NEWMAN, as father and

next of kin of RICHARD A. NEWMAN

and BARBARA OBARSKI as mother

and next of kin of KENNETH S.

OBARSKI, individually and on

behalf of all other similarly

situated individuals,

Plaintiffs-Appellants, No. 00-55504

Vv. D.C. No.

L. SATHYAVAGLSWARAN, M.D., in CV-99-10751-JSL

his official capacity as Chief OPINION

Medical Examiner-Coroner of the

County of Los Angeles; ANTHONY

T. HERNANDEZ, in his official

capacity; COUNTY OF LOS ANGELES,

Department of the Coroner,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Argued and Submitted

October 17, 2001 — Pasadena, California

Filed April 16, 2002

Before: James R. Browning, Ferdinand F. Fernandez

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Fernandez

COUNSEL

Bill Colovos, Southgate, Michigan, for the plaintiffs-

appellants.

Cheryl A. Orr and Aaron M. Peck, Arter & Hadden LLP,

Los Angeles, California, for the defendants-appellees.

OPINION

FISHER, Circuit Judge:

Parents, whose deceased children’s corneas were

removed by the Los Angeles County Coroner’s office

without notice or consent, brought this 42 U.S.C. § 1983

action alleging a taking of their property without due

process of law. The complaint was dismissed by the district

court for a failure to state a claim upon which relief could

be granted. We must decide whether the longstanding

recognition in the law of California, paralleled by our

national common law, that next of kin have the exclusive

right to possess the bodies of their deceased family mem-

bers creates a property interest, the deprivation of which

must be accorded due process of law under the Fourteenth

Amendment of the United States Constitution. We hold

that it does. The parents were not required to exhaust post

deprivation procedures prior to bringing this suit. Thus,

we hold that they properly stated a claim under § 1983.

I. FACTUALAND PROCEDURAL BACKGROUND

In reviewing the district court’s dismissal of the

complaint under Rule 12(b\(6), “we must ‘take as true all

allegations of material fact stated in the complaint and

construe them in the light most favorable to the nonmoving

A-3

party.’” Schneider v. California Dep’t of Corr., 151 F.3d

1194, 1196 (9th Cir. 1998) (quoting Warshaw v. Xoma

Corp., 74 F.3d 955, 957 (9th Cir. 1996)). Robert Newman

and Barbara Obarski (the parents) each had children,

- Richard Newman and Kenneth Obarski respectively, who

died in Los Angeles County in October 1997. Following

their deaths, the Office of the Coroner for the County of

Los Angeles (the coroner) obtained possession of the bodies

of the children and, under procedures adopted pursuant to

California Government Code § 27491.47 as it then ex-

isted,’ removed the corneas from those bodies without the

knowledge of the parents and without an attempt to notify

them and request consent. The parents became aware of

the coroner’s actions in September 1999 and subsequently

filed this § 1983 action alleging a deprivation of their

property without due process of law in violation of the

Fourteenth Amendment.’

' California Government Code § 27491.47(a) stated:

Notwithstanding any other provision of law, the coroner

may, in the course of an autopsy, remove and release or au-

thorize the removal and release of corneal eye tissue from a

body within the coroner’s custody, if ... [t]he coroner has

no knowledge of objection to the removal... .

42 U.S.C. § 1983 states, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the ju-

risdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in eq-

uity, or other proper proceeding for redress ....

A-4

The coroner filed a Rule 12(b)(6) motion to dismiss,

arguing that the parents could not have a property inter-

est in their deceased children’s corneas. The coroner also

argued that to the extent the parents did have due process

rights, they were required to exhaust state post-

deprivation remedies prior to bringing suit. The district _

court granted the motion to dismiss prior to a scheduled

hearing and without a written opinion explaining the basis

for the dismissal. We review de novo, Schneider, 151 F.3d

at 1196, to assess whether “it appears beyond doubt that

the plaintiff[s] can prove no set of facts in support of

[their] claim which would entitle [them] to relief.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957).

II. PROPERTY INTERESTS IN DEAD BODIES

The Fourteenth Amendment prohibits states from

“depriviing] any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. At the

threshold, a claim under § 1983 for an unconstitutional

deprivation of property must show (1) a deprivation (2) of

property (3) under color of state law. See Parratt v. Taylor,

451 U.S. 527, 536-37 (1981), overruled on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986). If these elements

are met, the question becomes whether the state afforded

constitutionally adequate process for the deprivation. Id.

at 537. Here, it is uncontested that the coroner’s action

was a deprivation under color of state law. The coroner

argues, however, that the dismissal of the parents’ com-

plaint was proper because they could not have a property

interest in their children’s corneas.

Since Rochin v. California, 342 U.S. 165 (1952), the

Supreme Court repeatedly has affirmed that “the right of

A-5

every individual to the possession and control of his own

person, free from all restraint or interference of others,”

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891),

is “so rooted in the traditions and conscience of our peo-

ple,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934),

overruled in part, Malloy v. Hogan, 378 U.S. 1 (1964), as to

be ranked as one of the fundamental liberties protected by

the “substantive” component of the Due Process Clause.

See Schmerber v. California, 384 U.S. 757, 772 (1966)

(“The integrity of an individual’s person is a cherished

value of our society.”); Rochin, 342 U.S. at 174 (describing

unauthorized physical invasions of the body as “offensive

to human dignity”). This liberty, the Court has “strongly

suggested,” extends to the personal decisions about “how

to best protect dignity and independence at the end of life.”

Washington v. Glucksberg, 521 U.S. 702, 716, 720 (1997);

Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 302, 305

(Brennan, J. dissenting) (expressing the view that a right

_ “to choose to die with dignity” flows from “[t]he right . . . to

determine what shall be done with one’s own body, [which]

is deeply rooted in this Nation’s traditions ... and is

securely grounded in the earliest common law”). The Court

has not had occasion to address whether the rights of

possession and control of one’s own body, the most “sacred”

and “carefully guarded” of all rights in the common law,

Botsford, 141 U.S. at 251, are property interests protected

by the Due Process Clause. Nor has it addressed what Due

Process protections are applicable to the rights of next of

kin to possess and control the bodies of their deceased

relatives.

“(T]he property interests protected by procedural due

process extend well beyond actual ownership of real

estate, chattels, or money.” Board of Regents v. Roth, 408

A-6

U.S. 564, 571-72 (1972).° “The Fourteenth Amendment’s

procedural protection of property is a safeguard of the

security of interests that a person has already acquired[.]”

Id. at 576.‘ These property interests “are not created by

the Constitution[,] ... they are created and their dimen-

sions are defined by existing rules or understandings that

stem from an independent source such as state law[.]” Id.

at 577. Thus, the first step of our analysis is to analyze the

history of rules and understandings of our nation with

respect to the possession and protection of the bodies of

the dead.

A. History of Common Law Interests in Dead

Bodies

Duties to protect the dignity of the human body after

its death are deeply rooted in our nation’s history. In a

valuable history of the subject, the Supreme Court of

Rhode Island recounted:

By the civil law of ancient Rome, the charge of

burial was first upon the person to whom it was

delegated by the deceased; second, upon the

scripti haeredes (to whom the property was

® See Morton J. Horwitz, The Transformation of American Law:

1870-1960 145 (1992) (describing the transformation of the concept of

property after the Civil War away from “the prevailing emphasis in

traditional law ... on a ‘physicalist’ definition of property derived from

land”).

‘ See Arthur Linton Corbin, Taxation of Seats on the Stock

Exchange, 31 Yale L.J. 429, 429 (1922) (“Our concept of property has

shifted .... {P]roperty’ has ceased to describe any res, or object of

sense, at all, and has become merely a bundle of legal relations — rights,

powers, privileges, immunities.”)

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given), and if none, then upon the haeredes le-

gitimi or cognati in order .. . . The heirs might be

compelled to comply with the provisions of the

will in regard to burial. And the Pontifical Col-

lege had the power of providing for the burial of

those who had no place of burial in their own

right.

Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227,

235-36 (1872) (citations omitted).

In 17th century England, and in much of Europe,

duties to bury the dead and protect the dignified disposi-

tion of the body, described as flowing from a “right of

burial, ... a person’s right to be buried,” id. at 238-39;

accord In re Johnsons’s Estate, 7 N.Y.S.2d 81, 84 (N.Y.

Surr. Ct. 1938) (explaining that in 17th century England,

“[a] man had a right to the decent interment of his own

body in expectation of the day of resurrection”), were

borne primarily by churches, which had a duty to bury the

* The logical relationship between rights and duties has been the

subject of considerable academic examination. Wesley Hohfeld famously

described rights and duties as “jural correlatives” — different aspects of

the same legal relation. See Wesley Hohfeld, Some Fundamental Legal

Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913);

see also Joseph William Singer, The Legal Rights Debate in Analytical

Jurisprudence from Bentham to Hohfeld, 1982 Wis. L.Rev. 975; Arthur

Corbin, Jural Relations and Their Classfication, 30 Yale LJ. 226

(1921). Oliver Wendell Holmes described rights as “intellectual

constructs used to describe the consequences of legal obligations. As he

puts it [in The Common Law (1881)], legal duties are logically antece-

dent to legal rights.’” Horowitz, supra at 138. Holmes’ description

appears particularly apt in respect to the law regarding dead bodies

where duties to provide burial were recognized as flowing from a right

of the dead, even though “strictly speaking, ... a dead man cannot be

said to have rights.” Pierce, 10 R.I. at 239.

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bodies of those residing in their parishes. Pierce, 10 R.I. at

236. These duties, and the explanation of their genesis in

the rights of the dead, carried over into New England

colonial practice where “[iJn many parts ... the parish

system prevailed, and every family was considered to have

a right of burial in the churchyard of the parish in which

they lived.” Id. at 235.

The Roman practice of including duties to protect the

body of the dead in civil law had no parallel in the early

English common law because burials were matters of

ecclesiastical cognizance. Id. Thus, Blackstone explained

that “though the heir has a property [interest] in the

monuments and escutcheons of his ancestors, yet he has

none in their bodies or ashes; nor can he bring any suit or

action against such as indecently, at least, if not injuri-

ously, violate and disturb their remains, when dead and

buried.” Bessemer Land & Improvement Co. v. Jenkins, 18

So. 565, 567 (Ala. 1895) (quoting 1 Bl. Comm. 429); see

also In re Johnsons’s Estate, 7 N.Y.S.2d at 83 (discussing

Lord Coke’s assertion that “buriall of the cadaver ... is

nullius in bonis, and belongs to ecclesiastical cognisance”).

A change in the common law in England can be traced

to the 1840 case of Rex v. Stewart, 12 AD. & E. 773 (1840).

In that case, the socially recognized right of the dead to a

dignified disposition, previously enforced only through

ecclesiastical courts, was interpreted as creating enforce-

able common law duties. The question before the court

was whether the hospital in which “a pauper” died or the

parish in which she was to be buried was under a duty to

carry the body to the grave. Id. at 774. The court ex-

pressed “extreme difficulty in placing . . . any legal founda-

tion” for either rule, but stated it was unwilling to

discharge the case “considering how long the practice had

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prevailed, and been sanctioned, of burying such persons at

the expense of the parish, and the general consequences of

holding that such practice ha[d] no warrant in law.” Jd. at

776-77. It stated the premises that, under long-standing

tradition, “[elvery person ... has a right to Christian

burial ... that implies the right to be carried from the

place where his body lies to the parish cemetery” and

“bodies ... carried in a state of naked exposure to the

grave[ ] would be a real offence to the living, as well as an

apparent indignity to the dead.” Id. at 777-78. From these

traditional understandings, the court concluded that “[t]he

feelings and interests of the living require” that “the

common law cast[ ] on some one the duty of carrying to the

grave, decently covered, the dead body of any person dying

in such a state of indigence as to leave no funds for that

purpose.” Id. at 778. That duty, it held, was imposed on

“the individual under whose roof a poor person dies ... :

he cannot keep him unburied, nor do any thing which

prevents Christian burial: he cannot therefore cast him

out, so as to expose the body to violation, or to offend the

feelings or endanger the health of the living: and for the

same reason, he cannot carry him uncovered to the grave.”

Id. at 778-79.

Many early American courts adopted Blackstone’s

description of the common law, holding that “a dead body

is not the subject of property right.” Bessemer Land, 18 So.

at 567. The duty to protect the body by providing a burial

was often described as flowing from the “universal ...

right of sepulture,” rather than from a concept of property

law. Wynkoop v. Wynkoop, 42 Pa. 293, 300-01 (1862). As

cases involving unauthorized mutilation and disposition of

bodies increased toward the end of the 19th century,

paralleling the rise in demand for human cadavers in

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medical science and use of cremation as an alternative to

burial, see In re Johnson’s Estate, 7 N.Y.S.2d at 85-86

(describing “an outpouring” of such cases), courts began to

recognize an exclusive right of the next of kin to possess

and control the disposition of the bodies of their dead

relatives, the violation of which was actionable at law.

Thus, in holding that a city council could not “seize upon

existing private burial grounds, make them public, and

exclude the proprietors from their management,” the

Supreme Court of Indiana commented that “the burial of

the dead can [not] ... be taken out of the hands of the

relatives thereof” because “we lay down the proposition,

that the bodies of the dead belong to the surviving rela-

tions, in the order of inheritance, as property, and that

they have the right to dispose of them as such, within

restrictions analogous to those by which the disposition of

other property may be regulated.” Bogert v. City of Indian-

apolis, 13 Ind. 134, 136, 138 (1859).° Over a decade later,

® Bogert attributed the rule that dead bodies “belong to the

surviving relations ... as property” to a report by the Honorable

Samuel B. Ruggles, special master to the State Supreme Court of New

York, 4 Bradford’s Surrogate 503, 503-532 (1856). Ruggles was ap-

pointed to analyze the legal implications of relocating some graves to

complete the widening of Beekman street. He “submitted the following

conclusion(s], as justly deducible from the fact, that no ecclesiastical

element existed in the jurisprudence of the state of New York”:

1. That neither a corpse, nor its burial, is legally subject,

in any way, to ecclesiastica! cognizance, nor to sacerdotal

power of any kind.

2. That the right to bury a corpse and to preserve its re-

mains, is a legal right, which the Courts of law will recog-

nize and protect.

3. That such right, in the absence of any testamentary

disposition, belongs exclusively to the next of kin.

(Continued on following page)

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the Rhode Island Supreme Court described the nation’s

common law as bestowing upon next of kin “a duty [to-

wards the dead], and we may also say a right, to protect

from violation; and a duty on the part of others to abstain

from violation”; a dead body “may therefore be considered

as a sort of quasi property.” Pierce, 10 R.I. at 238.

B. Interests in Dead Bodies in California Law

In 1872, the same year Pierce was decided, California

enacted Penal Code § 292, imposing a legal duty on next of

kin to bury the deceased. See Cal. Penal Code § 292 (West

2002), Historical and Statutory Notes. In 1899, the Cali-

fornia Supreme Court held that duty required recognition

of exclusive rights of possession, control and disposition

vesting in those with the duty. O’Donnell v. Slack, 55 P.

906, 907 (Cal. 1899). These rights, it explained, were by

law “protected, and for a violation of which [next of kin]

are entitled to indemnification.” Id.

At issue in O’Donnel was a probate court’s order that

a third party “stranger in blood” be charged with removing

O’Donnel’s body to his desired grave in Ireland. His wife,

who was too sick to move the body immediately, objected

that only she had the right to accompany the body and

4. That the right to protect the remains, includes the right

to preserve them by separate burial, to select the place of

sepulture, and to change it at pleasure.

5. That if the place of burial be taken for public use, the

next of kin may claim to be indemnified for the expense of

_ removing and suitably reinterring their remains.

Bogert, 13 Ind. at 140 n.1.

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refused to consent to anyone else being given that charge.

Relying heavily on the reasoning of Pierce, the California

Supreme Court explained:

The duty of the burial of the dead is made an ex-

press legal obligation [by Penal Code § 292]; but

aside from the obligation, there is a right, well

defined and universally recognized, that in dis-

posing of the body of deceased the last sad offices

belong of right to the next of kin... . This right

had its origin in sentiment, in affection for the

dead, in religious belief in some form of future

life. It therefore early became a subject of cogni-

zance by the ecclesiastical courts. But, while thus

having its origin in affection and religious senti-

ment, it soon came to be recognized as a strictly

legal right; and the next of kin, while not, in the

full proprietary sense, ‘owning’ the body of the

deceased, have property rights in the body....

Id. The court annulled the order of the probate court,

holding the next of kin’s rights of possession and control of

the body exclusive of others. Jd. at 907-08.

One year later, in Enos v. Snyder, 63 P. 170 (Cal.

1900), the California Supreme Court upheld the interests

of next of kin in relation to dead bodies. In that case, Mr.

Enos had directed in his will that his burial be “ ‘according

to the wishes and directions of Mrs. R.J. Snyder,’” with

whom he was living when he died. Jd. at 171. His wife and

daughter, as next of kin, sued Snyder for possession and

control of the body for its disposition. Thus was raised the

question: “did the respondents, as next of kin, have the

right to the possession of the body of the deceased for the

purpose of burying it, as against the appellants, who claim

that right under the will?” Id. The court resolved the

question in favor of the next of kin. In doing so, it held: “in

TO nee

~~ es ere eo e S ee

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the absence of statutory provisions, there is no property in

a dead body, that it is not part of the estate of the deceased

person, and that a man cannot by will dispose of that

which after his death will be his corpse.” Jd.

The holding of Enos that a person cannot by will

dispose of his corpse was abrogated by statute. See In re

Henderson’s Estate, 57 P.2d 212, 215 (Cal. Ct. App. 1936).

The explanation that “there is no property in a dead body”

has been modified by most courts addressing the subject.

Following O’Donnel and Pierce, California courts com-

monly use the term “quasi praperty” to describe the rights

of next of kin to the body of the deceased. See Holm uv.

Superior Court, 232 Cal. Rptr. 432, 435 (Cal. Ct. App.

1986); Sinai Temple v. Kaplan, 127 Cal. Rptr. 80, 85 n.13

(Cal. Ct. App. 1976); Cohen v. Groman Mortuary, Inc., 41

Cal. Rptr. 481, 483 (Cal. Ct. App. 1964), overruled on other

grounds, Christensen v. Superior Court, 820 P.2d 181

(1991).

In 1931, the exclusive rights of possession, control and

disposition of the corpse recognized in O’Donnel, together

with the duty previously contained in Penal Code § 292, were

codified in Health and Safety Code § 7100.’ California has at

” At the time relevant to this case, the statute read:

The right to control the disposition of the remains of a de-

ceased person, unless other directions have been given by

the decedent, vests in, and the duty of interment and the li-

ability for the reasonable cost of interment of such remains

devolves upon the following in the order named:

(a) The surviving spouse.

(b) The surviving child or children of the decedent.

(Continued on following page)

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all times recognized these rights as exclusive of others.

Thus civil litigants have no right to demand an autopsy,

Walsh v. Caidin, 283 Cal. Rptr. 326, 328 (Cal. Ct. App.

1991); Holm, 232 Cal. Rptr. at 437, and friends of the

deceased have no right to attend the burial, Ross v. Forest

Lawn Mem’! Park, 203 Cal. Rptr. 468, 472 (Cal. Ct. App.

1984), over the objection of next of kin. Violation of the

correlative duty of others to refrain from disturbing the

body is subject to an action for “tortious interference with

a right to dispose of a decedent’s remains.” Sinai Temple,

127 Cal. Rptr. at 86; cf. Christensen, 820 P.2d at 196

(permitting action for unauthorized harvesting of corneas

and other organs by mortuary); Palmquist v. Standard

Acc. Ins: Co., 3 F. Supp. 358, 359-360 (S.D. Cal. 1933)

(permitting action for unauthorized retention of organs

after an autopsy).

C. The Right to Transfer Body Parts

The first successful transplantation of a kidney in

1954 led to an expansion of the rights of next of kin to the

bodies of the dead. In 1968, the National Conference of

Commissioners on Uniform State Laws approved the

Uniform Anatomical Gift Act (UAGA), adopted by Califor-

nia the same year, which grants next of kin the right to

transfer the parts of bodies in their possession to others

(d) The person or persons respectively in the next degrees

of kindred in the order named by the laws of California as

entitled to succeed to the estate of the decedent.

(e) The public administrator when the deceased has suffi-

cient assets.

Id. (amended 1999).

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for medical or research purposes. Cal. Health & Safety

Code § 7150 et seg. The right to transfer is limited. The

California UAGA prohibits any person from “knowingly,

for valuable consideration, purchas[ing] or sell[ing] a part

for transplantation, therapy, or reconditioning, if removal

of the part is intended to occur after the death of the

decedent,” Cal. Health & Safety Code § 7155, as does

federal law, 42 U.S.C. § 274e (prohibiting the “transfer [of]

any human organ for valuable consideration”); cf. Finley

v. Atl. Transp. Co., 115 N.E. 715, 717 (N.Y. 1917) (“[TJhere

is no right of property in a dead body . . . as understood in

the commercial sense.”); Larson v. Chase, 50 N.W. 238, 239

(Minn. 1891) (“[A] dead body is not property in the com-

mon commercial sense of that term[.]”).

In the 1970s and 1980s, medical science improve-

ments and the related demand for transplant organs

prompted governments to search for new ways to increase

the supply of organs for donation. See National Organ

Transplant Act, Pub. L. No. 98-507, 98 Stat 2339 (1984)

(establishing Task Force on Organ Transplantation and

the Organ Procurement and Transplantation Network);

S.Rep. No. 98-382, at 2-4 (1984), reprinted in 1984

U.S.C.C.A.N. 3975, 3976-78 (discussing “major advances

_ in the science of human organ transplantation,” and

the “need[] ... to encourage organ donation” to meet a

* One commentator has argued that the “the very existence of a

law forbidding commercial alienation of organs paradoxically portrays

the human body as ‘an article of commerce’ that lies within the purview

of congressional power and would otherwise be subject to sale on the

market.” Radhika Rao, Property, Privacy, and the Human Body, 80 B.U.

L.Rev. 359, 376 (2000).

a ae a ae ae

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supply “far short” of demand). Many perceived as a hin-

drance to the supply of needed organs the rule implicit in

the UAGA that donations could be effected only if consent

was received from the decedent or next of kin. Erik S.

Jaffe, “She’s Got Bette Davis[’s] Eyes”: Assessing the

Nonconsensual Removal of Cadaver Organs Under the

Takings and Due Process Clauses, 90 Colum. L. Rev. 528,

535 (1990); cf. S. Rep. 98-382 at 2 (discussing estimates

that “organs are . . . recovered from fewer than 15 percent”

of people who die under circumstances that make them

suitable donors). In response, some states passed “pre-

sumed consent” laws that allow the taking and transfer of

body parts by a coroner without the consent of next of kin

as long as no objection to the removal is known. Jaffe,

supra at 535-36. California Government Code § 27491.47,

enacted in 1983, was such a law.”®

* Other laws, including the 1987 version of the UAGA, authorize

the taking of body parts without consent only where a reasonable effort

has been made to locate the next of kin and obtain consent to the

transfer. Jaffe, supra at 536-537. The majority of states adhere to the

original version of the UAGA, which requires consent from the donee or

next of kin for any transfer of organs. Jd. at 538.

coroner obtain written or telephonic consent of the next of kin prior to

removing corneas. The Committee Report accompanying that change in

law argued that “existing law governing corneal tissue removal does not

adequately reflect the importance of obtaining the consent of a dece-

dent’s next-of-kin .... [AJnatomical gifts are ... ‘gifts’ and ... the

removal of corneal tissue without the consent of a decedent's next-of-kin

violates the legally recognized principle that .. . an individual's right to

make or decline to make an anatomical gift [is] passed on to the next-of-

kin.” S. Com. Rep. S.B. 1403 (1998).

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III. DUE PROCESS ANALYSIS

“[T]o provide California non-profit eye banks with an

adequate supply of corneal tissue,” S. Com. Rep. SB 21

(Cal. 1983), § 27491.47(a) authorized the coroner to “re-

move and release or authorize the removal and release of

corneal eye tissue from a body within the coroner’s cus-

tody” without any effort to notify and obtain the consent of

next of kin “if... [t]he coroner has no knowledge of objec-

tion to the removal.” The law also provided that the

coroner or any person acting upon his or her request “shall

[not] incur civil liability for such removal in an action

brought by any person who did not object prior to the

removal ... nor be subject to criminal prosecution.”

§ 27491.47(b).”

In analyzing whether the implementation of that law

by the coroner deprived the parents of property, we define

property as “the group of rights inhering in the citizen’s

relation to the physical thing, as the right to possess, use

and dispose of it.... In other words, it deals with what

lawyers term the individual’s ‘interest’ in the thing in

question.” United States v. General Motors Corp., 323 U.S.

373, 378 (1945); accord Phillips v. Washington Legal

Found., 524 U.S. 156, 167-68, (1998); cf. Perry v. Sinder-

mann, 408 U.S. 593, 601 (1972) (explaining that “‘prop-

erty’ denotes a broad range of interests”). “To have a

property interest ... a person clearly must have more

" For body parts other than corneas, California adopted the 1987

version of the UAGA authorizing transfer when no knowledge of

objection is known and after “[a] reasonable. effort has been made to

locate and inform [next of kin] of their option to make, or object to

making, an anatomical gift.” Cal. Health & Safety Code § 7151.5(a)(2).

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than an abstract need or desire” for the thing in question,

“Chje must, instead, have a legitimate claim of entitlement

to it .... It is a purpose of the constitutional right to a

hearing to provide an opportunity for a person to vindicate

those claims.” Jd.

In two decisions the Sixth Circuit, the only federal

circuit to address the issue until now, held that the inter-

ests of next of kin in dead bodies recognized in Michigan

and Ohio allowed next of kin to bring § 1983 actions

challenging implementation of cornea removal statutes

similar to California’s. Whaley v. County of Tuscola, 58

F.3d 1111 (6th Cir. 1995) (Michigan); Brotherton v. Cleve-

land, 923 F.2d 477 (6th Cir. 1991) (Ohio). The Sixth Circuit

noted that courts in each state had recognized a right of

next of kin to possess the body for burial and a claim by

next of kin against others who disturb the body. Whaley,

58 F.3d at 1116; Brotherton, 923 F.2d at 482. Those com-

mon law rights, combined with the statutory right to

control the disposition of the body recognized in each

state’s adoption of the UAGA, was held to be sufficient to

create in next of kin a property interest in the corneas of

their deceased relatives that could not be taken without

due process of law. Whaley, 58 F.3d at 1117; Brotherton,

923 F.2d at 482.

The supreme courts of Florida and Georgia, however,

have held that similar legal interests of next of kin in the

possession of the body of a deceased family member,

recognized as “quasi property” rights in each state, are

“not ... of constitutional dimension.” Georgia Lions Eye

Bank, Inc. v. Lavant, 335 S.E.2d 127, 128 (Ga. 1985); State

v. Powell, 497 So.2d 1188, 1191 (Fla. 1986) (commenting

that “{aJll authorities generally agree that the next of kin

have no property right in the remains of a decedent”). The

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Florida Supreme Court recently rejected the broad impli-

cations of the reasoning in Powell, distinguishing that

decision as turning on a balance between the public health

interest in cornea donation and the “ ‘infinitesimally small

intrusion’” of their removal. Crocker v. Pleasant, 778

So.2d 978, 985, 988 (Fla. 2001) (allowing a § 1983 action to

go forward for interference with the right of next of kin to

possess the body of their son because “in Florida there is a

legitimate claim of entitlement by the next of kin to

possession of the remains of a decedent for burial or other

lawful disposition”). ”

We agree with the reasoning of the Sixth Circuit and

believe that reasoning is applicable here. Under tradi-

tional common law principles, serving a duty to protect the

dignity of the human body in its final disposition that is

deeply rooted in our legal history and social traditions, the

parents had exclusive and legitimate claims of entitlement

to possess, control, dispose and prevent the violation of the

corneas and other parts of the bodies of their deceased

children. With California’s adoption of the UAGA, Cal.

Health and Safety Code § 7151.5, it statutorily recognized

other important rights of the parents in relation to the

bodies of their deceased children — the right to transfer

body parts and refuse to allow their transfer. These are all

important components of the group of rights by which

” The Michigan Court of Appeals held that the rights of the next of

kin to possess and control the body for burial do not create a constitu-

tionally protected privacy interest in the next of kin because that

interest “ends with the death of the person to whom it is of value.”

Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 277 (Mich. Ct.

App. 1984). We need not address that issue here because the parents

have limited their due process interest to one of property.

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property is defined, each of which carried with it the

power to exclude others from its exercise, “traditionally ...

one of the most treasured strands in an owner’s bundle of

property rights.” Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 435-436 (1982); see Thomas W.

Merrill, Property and the Right To Exclude, 77 Neb. L. Rev.

730, 740-752 (1998) (discussing the “primacy of the right

to exclude”); Jeremy Bentham, The Limits of Jurispru-

dence Defined 164 (Charles Warren Everett ed., 1945)

(stating that “[t]o give a man a property” interest in a

thing, there must be “a mandate prohibiting persons at

large from meddling with it”). Thus, we hold that the

parents had property interests in the corneas of their

deceased children protected by the Due Process Clause of

the Fourteenth Amendment.

Our holding is not affected by California’s labeling of

the interests of the next of kin as “quasi property,” a term

with little meaningful legal significance.” “Although the

underlying substantive interest is created by ‘an inde-

pendent source such as state law,’ federal constitutional

law determines whether that interest rises to the level of a

* The Supreme Court has used the term to identify a property

interest only once. In International News Service v. Associated Press,

248 U.S. 215, 236-242 (1918) the majority held that news “must be

regarded as quasi property,” the taking of which without consent

constitutes the basis for an unfair competition action. The Court’s label

did not affect the holding of the case. There is no entry for “quasi

property” in Blacks Law Dictionary (6th Ed. 1990) or Ballentine’s Law

Dictionary (3d ed. 1969), although each contains entries for “quasi

contract.” The only examples of “quasi property” listed under the entry

in Words and Phrases are news, citing International News Service, and

dead bodies. 35A Words and Phrases 487 (1965); see id. (2000 cumula-

tive supp.).

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‘legitimate claim or entitlement’ protected by the Due

Process Clause.” Memphis Light, Gas and Water Div. v.

Craft, 436 U.S. 1, 9 (1978). As the Sixth Circuit correctly

recounted in Whaley and Brotherton, the identification of

property interests under constitutional law turns on the

substance of the interest recognized, not the name given

that interest by the state. See Whaley, 58 F.3d at 1114

(explaining that courts must “look beyond the law’s

nomenclature and to its substance”); Brotherton, 923 F.2d

at 482 (holding that rights of next of kin in Ohio “form a

substantial interest in the dead body, regardless of Ohio’s

classification of that interest”). Thus in Brotherton, the

interests created by Ohio law were recognized as constitu-

tionally protected property interests despite Ohio courts

not characterizing the rights of next of kin to dead bodies

as “quasi-property right[s],” as have “a majority of the

courts confronted with the issue.” Brotherton, 923 F.2d at

480. Similarly, in Whaley, the court recognized that next of

kin in Michigan possessed constitutionally protected

property rights to the corneas of deceased relatives even

though “Michigan has repeatedly emphasized” that recov-

ery for violation of the rights of next of kin “‘is not for the

damage to the corpse as property.’” Whaley, 58 F.3d at

1116 (quoting Keyes v. Konkel, 78 N.W.2d 649, 649 (1899)).

Our holding similarly turns on the substance of the rights

California recognizes, not on the label given to them.

Nor does the fact that California forbids the trade of

body parts for profit mean that next of kin lack a property

interest in them. The Supreme Court has “never held that

a physical item is not ‘property simply because it lacks a

positive economic or market value.” Phillips, 524 U.S. at

169; cf. Int’l News Service v. Assoc. Press, 248 U.S. 215,

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246 (1918) (Holmes, J. dissenting) (“Property, a creation of

law, does not arise from value....”).

Because the property interests of next of kin to dead

bodies are firmly entrenched in the “background principles

of property law,” based on values and understandings

contained in our legal history dating from the Roman

Empire, California may not be free to alter them with

exceptions that lack “a firm basis in traditional property

principles.” Phillips, 524 U.S. at 165-68 (holding that state

could legislatively exempt income only trusts and commu-

nity property from long established rule that interest

follows principle because those exceptions “have a histori-

cal pedigree”); accord Washington Legal Found. v. Legal

Found. of Washington, 271 F.3d 835, 852-53 (9th Cir. 2001)

(en banc); Schneider, 151 F.3d at 1200-01; cf. PruneYard

Shopping Center v. Robins, 447 U.S. 74, 93-94 (1980)

(Marshall, J. concurring) (“[T]here are limits on govern-

mental authority to abolish ‘core’ common-law rights.”).

We need not, however, decide whether California has

transgressed basic property principles with enactment of.

§ 27491.47 because that statute did not extinguish Calli-

fornia’s legal recognition of the property interests of the

parents to the corneas of their deceased children. It

allowed the removal of corneas only if “the coroner has no

“ Of course, states may choose between multiple legal rules that

are consistent with the basic principles of the common law “at the will,

or even the whim, of the legislature.” Munn v. Illinois, 94 U.S. 113, 134

(1876); accord Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438

U.S. 59, 88 n. 32 (1978) (“Our cases have clearly established that ‘{a]

person has no property, no vested interest, in any rule of the common

law.’”) (quoting Second Employers’ Liability Cases, 223 U.S. 1, 50

(1912)) (emphasis added).

A-23

knowledge of objection,” a provision that implicitly ac-

knowledges the ongoing property interests of next of kin.”

The effect of § 27491.47 was to remove a procedure —

notice and request for consent prior to the deprivation —

and a remedy — the opportunity to seek redress for the

deprivation in California’s courts. A state may not evade

due process analysis by defining “‘[p]roperty ... by the

procedures provided for its deprivation.” Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 541 (1985). “While the

legislature may elect not to confer a property interest ...

it may not constitutionally authorize the deprivation of

such an interest, once conferred, without appropriate

procedural safeguards.” Id. (citations omitted). With

§ 27491.47, California eliminated procedural safeguards

but retained the interest.

When the coroner removed the corneas from the

bodies of the parents’ deceased children and transferred

them tc others, the parents could no longer possess,

control, dispose or prevent the violation of those parts of

their children’s bodies. To borrow a metaphor used when

the government physically occupies property, the coroner

did not merely “take a single ‘strand’ from the ‘bundle’ of

property rights: it chop[ped] through the bundle, taking a

% In this respect, § 27491.47(a) differs from California law

governing the state’s duty to conduct autopsies to determine the cause

of death which may be performed contrary to the wishes of the individ-

ual or next of kin. See Cal. Govt. Code § 27491; Huntly v. Zurich Gen. ~

Accident & Liab. Ins. Co., 280 P. 163 (Cal. Dist. Ct. App. 1929) (holding

next of kin have no right to prohibit state from performing invasive

autopsy to determine cause of death).

A-24

slice of every strand.” Loretto, 458 U.S. at 435. This was a

deprivation of the most certain variety.

At bottom, “[p]roperty rights serve human values.

They are recognized to that end, and are limited by it.”

State v. Shack, 277 A.2d 369, 372 (N.J. 1971). The property

rights that California affords to next of kin to the body of

their deceased relatives serve the premium value our

society has historically placed on protecting the dignity of

the human body in its final disposition. California in-

fringed the dignity of the bodies of the children when it

extracted the corneas from those bodies without the

consent of the parents. The process of law was due the

parents for this deprivation of their rights.

IV. POSTDEPRIVATION PROCESS

The scope of the process of law that was due the

parents is not a question that we can answer based on the

pleadings alone. This question must be addressed in

future proceedings.

The coroner’s argument that, as a matter of law, post-

deprivation process is sufficient and the parents should

therefore be required to exhaust postdeprivation proce-

dures must fail. “[T]he State may not finally destroy a

property interest without first giving the putative owner

an opportunity to present his claim of entitlement.” Logan

v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982). The

® We are at a loss to understand what postdeprivation procedures

might be available to the parents given that § 27491.47(b) removed

their ability to seek civil redress in California’s courts or press 4

criminal claim.

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timing of a hearing depends upon the accommodation of

competing interests including the importance of the

private interests, the length or finality of the deprivation

and the magnitude of governmental interest. Id.; Mathews

v. Eldridge, 424 U.S. 319, 335 (1976). But, absent “ex-

traordinary situations,” Boddie v. Connecticut, 401 U.S.

371, 379 (1971), such as “‘the necessity of quick action by

the State or the impracticality of providing any predepri-

vation process,” the deprivation of property resulting ~

from an established state procedure does not meet due

process requirements without a predeprivation hearing.

Logan, 455 U.S. at 436 (quoting Parratt, 451 U.S. at 539);

accord Hudson v. Palmer, 468 U.S. 517, 532 (1984)

(“[Plostdeprivation remedies do not satisfy due process

where a deprivation of property is caused by conduct

pursuant to established state procedure, rather than

random and unauthorized action.”). The coroner’s removal

of corneas was in accordance with the state procedures

established by § 27491.47(a). Whether extraordinary

situations justify the failure of the coroner to afford a

predeprivation hearing turns on issues of fact that cannot

be properly examined at this stage of the litigation.

_ We do not hold that California lacks significant

interests in obtaining corneas or other organs of the

deceased in order to contribute to the lives of the living.

Courts are required to evaluate carefully the state’s

interests in deciding what process must be due the holders

of property interests for their deprivation. Logan, 455 US.

at 434; Mathews, 424 U.S. at 335. An interest so central to

the state’s core police powers as improving the health of

its citizens is certainly one that must be considered seri-

ously in determining what process the parents were due.

See Cruzan, 497 U.S. at 262 (explaining that states have

A-26

an “unqualified interest in the preservation of human

life”). But our Constitution requires the government to

assert its interests and subject them to scrutiny when it

invades the rights of its subjects.” Accordingly, we reverse

the district court’s dismissal of the parents’ complaint and

remand for proceedings in which the government’s justifi-

cation for its deprivation of parents’ interests may be fully

aired and appropriately scrutinized.

The dismissal of the parents’ § 1983 claim is RE-

VERSED and REMANDED for further proceedings.

FERNANDEZ, Circuit Judge, Dissenting:

I dissent because I do not believe that the asthenic

legal interest in a decedent’s body, which California

confers upon relatives and others, should be treated as a

puissant giant for federal constitutional purposes.

To begin with, it has always been true in California

that absent a statute “there is no property in a dead body.”

Enos v. Snyder, 131 Cal. 68, 69, 63 P. 170, 171 (1900). For

that reason, no action for conversion will lie against

someone who is said to have damaged or taken a part of

” It has been said in another context that establishing “a culture of

justification — a culture in which every exercise of power is expected to

be justified” — lies at the heart of the establishment of constitutional

bills of rights. Etienne Mureinik, A Bridge to Where? Introducing the

Interim Bill of Rights, 10 S. Afr. J. Hum. Rts. 31, 32 (1994); Pharm.

Mfr. Ass’n in re: ex parte application of the President of the Republic of

South Africa, 2000(2) SA 674, para 85 n.107 (CC) (describing holding

that executive action is subject to rationality review as an “an incident

of the ‘culture of justification’ described by Mureinik”).

A-27

the body. See Gray v. S. Pac. Co., 21 Cal. App. 2d 240, 246,

68 P.2d 1011, 1015 (1937). To the extent that any right

exists, it is, in general, merely a right to possession. Jd.

That right exists solely “for the limited purpose of deter-

mining who shall have its custody for burial.” Sinai

Temple v. Kaplan, 54 Cal. App. 3d 1103, 1110, 127 Cal.

Rptr. 80, 85 (1976).

Of course, any civilized state desires that the bodies of

its deceased members be disposed of in an appropriate

way, on grounds of decency, consideration for others, and

pragmatism. And it should be done with reasonable haste

and without undue acrimony.

California’s statutory scheme reflects all of that. It

decidedly does not confer a property right upon anyone.

Assuming that a decedent has not made his own arrange-

ments for disposal of his own earthly remains,’ the state

makes sure that somebody else will both do so and pay for

it. To that end, California has provided that “[t]he right to

control the disposition of the remains of a deceased person

. vests in, and the duty of disposition and the liability

for the reasonable cost of disposition of the remains

devolves upon,” a list of individuals. Cal. Health & Safety

Code § 7100(a). Thus, this so-called right is actually in the

nature of a duty and expense designed to assure that the

remains will not simply be left about, but will be quickly

interred. And the state has created something like a table

of intestate succession for the purpose of assuring that the

right and duty land firmly on a defined group. First comes

the person who has a power of attorney for healthcare.

' See Cal. Health & Safety Code § 7100.1.

A-28

Cal. Health & Safety Code § 7100(a)(1). Then comes the

spouse. Id. at (a)(2). Then adult children, then parents,

then next of kin. Jd. at (a)(3)-(5). At the end is the public

administrator, but he only gets the so-called right if there

are “sufficient assets” to allow him to discharge his duty.

Id. at (a6). This somewhat remarkable list surely shows

just how peculiar it is to dub what we are dealing with a

constitutionally protected property right. Is not it interest-

ing that the holder of a power of attorney comes before the

closest relatives, and equally interesting to see that the

public administrator may wind up with the “right?” Or is

it essentially a duty?

I rather think that it is really a duty rather than a

right, and because a duty in one person must mean that a

right is lodged in someone else, it seems pellucid that the

state holds the right to demand that someone on the list

bear the burden of disposing of the deceased’s remains; it

then makes it possible for that person to do so by also

giving him the right to do so.’ Again, that hardly looks like

the kind of interest that United States Constitution was

designed to protect.

This leads, I think, to a fairly simple proposition:

when the state sees to it that the duty, with its necessarily

associated right, devolves upon a person, it can constitu-

tionally limit that duty and the right that goes with it.

And that is precisely what California did when it declared

that the coroner can, in the course of an autopsy, release

corneal eye tissue if he “has no knowledge of objection to

2 ‘The correlative duty is for others not to interfere with this

subsidiary right to inter the decedent and incur an expense.

A-29

the removal and release of corneal tissue having been

made by the decedent or any other person specified in

Section 7151.5 of the Health and Safety Code.” Cal. Gov't

Code § 27491.47(a) (1983).° In that respect, it should be

noted that the people referred to in § 7151.5° are not

precisely the same as the people referred to in §.7100(a).

The so-called right to consent, therefore, does not follow

the so-called duty, and right, to see to interment. This,

again, demonstrates just how asthenic the right conferred

by § 7100(a) really is.

Nobody who has had the misfortune of having his

loved ones die can fail to be moved by the prospect that

somebody else will treat the loved one’s former earthly

vessel with disrespect. That feeling does not, however,

demonstrate that California has conferred a constitution-

ally protected property right upon family members. In

fact, it has not; it has merely given them enough of a right

to allow them to fulfill their duty, and it has limited that

in a number of ways. One of those ways has to do with

corneal tissue. As to that, the duty may not devolve, and

concomitantly the right will be neither necessary nor

constitutionally protected.

Thus, I respectfully dissent.

* This section has been revised and now refers to § 7151.

‘ The list has been somewhat revised, and is now in Health and

Safety Code § 7151(a).

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT NEWMAN as father ) Case No.

and next ofkinof RICHARDA. ) 99-10751 JSL(AJWx)

OBARSKI as mother and next of )

kin of KENNETH S. OBARSKI, ) JUDGMEAT OF

individually and on behalf of all )

others similarly situated indi- ) [Fed. R. Civ. P. 58]

viduals, ‘ (Filed Mar. 21, 2000)

Pisintifis, ) (Entered Mar. 22, 2000)

Vv.

L. SATHYAVAGLSWARAN,

M.D., in his official capacity as

Chief Medical Examiner-Coroner

of the County of Los Angeles,

and ANTHONY T. HERNAN-

DEZ, in his official capacity as

Director of the County of Los

Angeles Coroner’s office and

COUNTY OF LOS ANGELES;

DEPARTMENT OF CORONER,

Defendants.

ee ee ed

On February 18, 2000, the Motion to Dismiss of

Defendants L. Sathyavaglswaran, M.D., Anthony Hernan-

dez, and the County of Los Angeles, Department of Coro-

ner, came for hearing before the above-entitled Court, the -

Hon. J. Spencer Letts, United States District Court Judge,

presiding. The motion to dismiss was decided without

hearing. Based on the papers filed in connection with this

B-2

matter, and being fully apprised of the relevant facts and

law, Defendants’ Motion to Dismiss was GRANTED.

Accordingly,

IT IS ORDERED, ADJUDGED, AND DECREED that

the Motion to Dismiss of Defendants L. Sathyavaglswaran,

M.D., Anthony Hernandez and the County of Los Angeles,

Department of Coroner, be, and hereby is, GRANTED, and

that judgment be entered in favor of Defendants and

against Plaintiffs Robert Newman and Barbara Obarski,

and that Defendants recover costs in the amount of

$ o*

DATED: 3/21/00

/s/ Spencer Letts

HON. J. SPENCER LETTS

United States District Judge

PROOF OF SERVICE BY FEDERAL EXPRESS

I, Zanida Premdas Samuels, declare as follows:

I am employed in the County of Los Angeles, State of

California; I am over the age of 18 years and am not a

party to the within action or proceeding. I am employed by

the law firm of Arter & Hadden LLP, located at 725 S.

Figueroa Street, Suite 3400, Los Angeles, California

90017-5434. I am readily familiar with Arter & Hadden

LLP’s business practice for collection and processing of

correspondence for overnight delivery by Federal Express.

I served the within [PROPOSED] JUDGMENT OF

DISMISSAL in said cause, by placing a true and correct

copy thereof in an envelope addressed as follows:

B-3

Bill Colovos, Esq.

13400 Dix-Toledo Road

Southgate, Michigan 48195

Tel: 734-282-2900

and by then sealing said envelope and tendering it for

next-day delivery by Federal Express on February 25,

2000, following Arter & Hadden LLP’s ordinary business

practices for overnight delivery mailing.

I declare under penalty of perjury under the laws of

the State of California that the foregoing is true and

correct. -

Executed on February 25, 2000, at Los Angeles,

California.

/s/ Zanida Premdas Samuels

Zanida Premdas Samuels

C-1

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT NEWMAN , et al., ) CV 99-10751 JSL

Plaintiffs, ) ORDER GRANTING

; DEFENDANTS’

MOTION TO

L. SATHYAVAGLSWARAN, __? DISMISS

M_D., et al., Pe

) (Filed Feb. 18, 2000)

Defendants.

) (Entered Feb. 22, 2000)

The motion of defendants L. SATHYAVAGLSWARAN

M.D., et al., to dismiss was decided without hearing on

February 1, 2000.

Having reviewed the papers filed in connection with

this matter, and being fully apprised of the relevant facts

and law,

IT IS HEREBY ORDERED that the motion of defen-

dants to dismiss be GRANTED.

IT IS SO ORDERED.

DATED: __2/18/00

/s/ Spencer Letts

J. Spencer Letts

United States District Judge

D-1

APPENDIX D

NOT FOR PUBLICTION [sic]

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT NEWMAN as father

and next of kin of RICHARD No. 00-55504

A. NEWMAN and BARBARA D.C. No.

OBARSKI as mother and next of CV-99-10751-JSL

kin of KENNETH S. OBARSKI,

individually and on behalf of all ORDER

(Filed Jun. 14, 2002)

others similarly situated

individuals; BARBARA OBARSKI,

Plaintiffs-Appellants,

L. SATHYAVAGLSWARAN, M.D.,

in his official capacity as Chief

Medical Examiner-Coroner of the

County of Los Angeles; ANTHONY

T. HERNANDEZ, in his official

capacity; COUNTY OF LOS

ANGELES, Department of the

Coroner,

Defendants-Appellees.

BEFORE: BROWNING, FERNANDEZ and FISHER,

Circuit Judges.

The panel has voted to deny the petition for panel

rehearing and to deny the petition for rehearing en banc.

D-2

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for

rehearing en banc are denied.

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