# Petition for Writ of Certiorari — Sathyavaglswaran v. Newman

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0424%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1029

## Text

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,
v.

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

lm

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?

i

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.

iV

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.

(C) A document recording a verbal telephonic
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.

6

(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.

~]

(c) The surviving parent or parents of 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:

8

(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 :

9

(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).

10

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. -

11

(b) Valuable consideration does not include rea-
sonable payment for the removal, processing,
disposal, preservation, quality control, storage,
transplantation, or implantation of a part.

(c) Aperson who violates this section is guilty of
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.

(c) Definitions.

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.

12

(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

13

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.

14

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).

15

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

16

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

17

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

18

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

19

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.

20

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

21

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

22

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.

23

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

24

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

26

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

27

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.

e

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.”)

A-7

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.

A-8

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

A-9

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

A-10

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)

A-11
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.

A-12

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

A-13

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.

(c) The surviving parent or parents of the decedent.

(Continued on following page)

A-14

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).

A-15

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

A-16

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.

© In 1998, § 27491.47(aX2) was amended to require that the
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).

A-17

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).

A-18

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

A-19

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.

A-20

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.).

A-21

‘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,

A-22

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.

A-25

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,

V.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0424%3A1. Public record. Not legal advice.