Opposition Brief — Sathyavaglswaran v. Newman

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No. 02-423 |

Jun The

Supreme Court of the Gnited States ——

L. SATHYAVAGLSWARAN, M.D., IN HIS OFFICIAL

CAPACITY AS CHIEF MEDICAL EXAMINER-

CORONER OF THE COUNTY OF LOS ANGELES, AND

ANTHONY T. HERNANDEZ, IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF THE COUNTY OF LOS

ANGELES CORONER'S OFFICE AND COUNTY OF LOS

ANGELES DEPARTMENT OF CORONER,

Petitioners,

ROBERT NEWMAN, AS FATHER AND NEXT OF KIN

OF RICHARD A. NEWMAN AND BARBARA OBARSKI,

AS MOTHER AND NEXT OF KIN OF KENNETH S.

OBARSKI, INDIVIDUALLY AND ON BEHALF OF ALL

OTHER SIMILARLY SITUATED INDIVIDUALS,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

BILL COLOVOS

Counsel of Record

LAW OFFICES OF BILL COLOVOS

13400 Dix-Toledo Road

Southgate, Michigan 48195

(734) 282-2900

Attorney for Respondents

Robert Newman and

Barbara Obarski

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

OR CALL COLLECT, (402) 342-2831

TABLE OF CONTENTS

Page

RESPONDENTS’. BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI....................0cceeeeee 1

REASONS FOR DENYING THE WRIT.................... 2

I. THE DECISION BELOW DOES NOT PRE-

8 EN, Sty, a On Pe ee 2

II. THE DECISION BELOW WAS CORRECT.... 3

Ill. FEDERAL CONSTITUTIONAL LAW DE-

TERMINES WHETHER AN INTEREST

RISES TO THE LEVEL OF A LEGITIMATE

CLAIM OF ENTITLEMENT PROTECTED

BY THE DUE PROCESS CLAUSE................. 4

IV. IN CONFORMITY WITH THE-LOS ANGE-

LES CORONER’S OFFICE CUSTOM AND

POLICY, NO NOTICE AND DUE PROCESS

OF ANY MANNER WAS AFFORDED TO

THE NEXT OF KIN PRIOR TO THE RE-

MOVAL AND SALE OF THEIR CHIL-

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—

——

TABLE OF AUTHORITIES

Page

CASES

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

BBG) os cavaissisnsiorncsanintdinsnnmanmenalaeaa anata 2,4

Logan v. Zimmerman Brush Co., 455 U.S. 422

CEBOD) oncsiscanveicnssovconsnicentneisniiiansencuanenileaeainiianmmdealin 5

Memphis Light, Gas and Water Div. v. Craft, 436

UB. 1 CDT. on cccsnssnsriastniceitiitesinnssesiieanmamiatidg ieitaadaianapcnic: 4

Palmquist v. Standard Acc. Ins. Co-, 3 F. Supp. 358

(BD, Cath. BOGE) scsi ccnscsssovecintistesisrincestctateaktaiaiaarsotacnsemansve 3

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

Cal. Rast. 80 (AGT). .nncvnseincssecancsinstenensaiinmianrenctaneiaenessebes 3

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

TG) ocvcve<scssvesnesencsacteceemnicetaseseseneneannaienpeaemindaanindie 2,4

STATUTES

4B UBC. C2DGB. a incncscnsscecoiniccivverciemenaainianionneiiaitans 1,5

MISCELLANEOUS

Fourteenth Amendment of the United States

Cem ociccscenissssnctnnvssenasvieccinnepitiinlanbemnaniiaiinmintiianbeite 2

Cal. Health and Safety Code §7100..........::s:ssssssecsssseeseeneees 3

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

Respondents, 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, request

that this Court deny the Petition for Certiorari filed by

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 Coro-

ner’s Office and COUNTY OF LOS ANGELES DEPART-

MENT OF CORONER, seeking review of the decision of

the United States Court of Appeals for the Ninth Circuit

entered in this case on April 16, 2002.

The Respondents are parents whose deceased chil-

dren’s corneas were removed by the Los Angeles County

Coroner’s Office without any notice or consent. The Coro-

ner’s Office sold the body parts of the Respondents’ chil-

dren to a Tissue Bank pursuant to an agreement whereby

the Coroner’s Office would contact the Tissue Bank upon

receipt of bodies so that certain tissues could be collected.

The Coroner’s Office received monetary compensation for

the harvested corneas pursuant to a written policy and

custom between its office and the Tissue Bank.

The Respondents upon discovering these egregious

acts, filed a 42 U.S.C. §1983 suit alleging a taking of their

next-of-kin property rights without any due process of law.

The complaint was dismissed by the District Court for

failure to state a claim upon which relief could be granted.

The United States District Court for the Ninth Circuit

reversed the trial court holding that the long-standing

recognition in the law of California paralleled the national

ERENT ee

common law, that next of kin have the exclusive right to

possess the bodies of their deceased family members

creates a property interest, the deprivation of which must

be accorded due process of law under the Fourteenth

Amendment of the United States Constitution.

REASONS FOR DENYING THE WRIT

I. THE DECISION BELOW DOES NOT PRE-

SENT A CONFLICT

The Ninth Circuit Court of Appeals decision in this

case is in conformity with the two earlier decisions of the

Sixth Circuit Court of Appeals decisions which held that

the interests 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). The Sixth

Circuit noted that courts in each state had recognized a

right of next of kin to possess the body for burial and claim

by next of kin against others who disturb the body.

Whaley, 58 F.3d at 1116; Brotherton v. Cleveland, 923 F.2d

477 at 482 (6th Cir. 1991) (Ohio). Those common law

rights, combined with the statutory right to control the

disposition of the body recognized in each state’s adoption

of the UAGA, were 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 Defendants in Whaley petitioned the Supreme

Court of the United States for Writ of Certiorari, citing the

same reasons set forth within the Coroner’s Petition. The

Writ of Certiorari was Denied, 116 S.Ct. 476, 516 U.S. 975,

133 L.Ed.2d 404 (1995).

There exists no conflict within the United States

Federal Circuits and the decision of the Ninth Circuit is in

accordance with statutory and common law with regard to

the right of the next of kin to possess and protect a family

member’s body for burial and against mutilation and

organ harvesting.

II. THE DECISION BELOW WAS CORRECT

California has long recognized that the next of kin

have exclusive rights of possession, control and disposition

of a family member. Health and Safety Code §7100. The

disturbing of a body is subject to an action for “tortious

interference with a right to dispose of a decedent’s re-

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

Cal. Rptr. 80 at 86 (1976); 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 autopsy).

The Los Angeles County Coroner’s Office is the only

Coroner’s office known, in the State of California, that had

a policy not to ask the next of kin for permission prior to

harvesting body parts for the contractual sale to a Tissue

Bank. The next of kin were not afforded any form of due

process prior to the removal and contractual sale of their

deceased family members corneas.

The Ninth Circuit’s decision and reasoning is in line

with traditional common law principals serving a duty

to protect the dignity of the human body in its final

disposition. 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. The Court correctly held

that “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.”

Ill, FEDERAL CONSTITUTIONAL LAW DETER-

MINES WHETHER AN INTEREST RISES TO

THE LEVEL OF A LEGITIMATE CLAIM OF

ENTITLEMENT PROTECTED BY THE DUE

PROCESS CLAUSE 3

The Respondents harvested organs from the de-

ceased’s family members without making any effort

whatsoever to contact and request the consent to the

removal and sale of the organs to a Tissue Bank.

The Ninth Circuit correctly cited that “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 ‘legitimate claim or entitlement protected by the Due

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

Craft, 436 U.S. 1, 9 (1978).

The Ninth Circuit’s decision is in conformity with the

Sixth Circuit’s earlier decision in Whaley and Brotherton.

The identification of property interests under constitu-

tional law turns on the substance of the interest recog-

nized, not the name given that interest by the State. See

Whaley, 58 F.3d at 1114; Brotherton, 923 F.2d at 482.

The next of kin have a legitimate claim or entitlement

which is protected by the Due Process Clause. A state

statute or law cannot deprive the complainant of Due

Process; that is the logical reason for the Civil Rights

Statute 42 U.S.C. §1983.

IV. IN CONFORMITY WITH THE LOS ANGELES

CORONER’S OFFICE CUSTOM AND POLICY,

NO NOTICE AND DUE PROCESS OF ANY

MANNER WAS AFFORDED TO THE NEXT OF

KIN PRIOR TO THE REMOVAL AND SALE OF

THEIR CHILDREN’S ORGANS.

The Ninth Circuit held that the Coroner’s argument

at the trial court level that, as a matter of law, postdepri-

vation process is sufficient and the parents should there-

fore be required to exhaust postdeprivation procedures

must fail. The Court held that “[TJhe State may not finally

destroy a property interest without first giving the puta-

tive owner an opportunity to present his claim of entitle-

ment.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 434

(1982).

The Respondents as parents and next of kin of their

children, were not afforded any notice whatsoever prior to

their childrens’ organs being harvested and sold by the

Coroner’s office. The Coroner’s office had a policy and

custom not to contact any.next of kin prior to the harvest-

ing and sale of a relative’s organs.

The Petitioners argue in their brief that time is of the

essence and the optimum time for removing corneal tissue

is within 6 hours of death. This argument must fail be-

cause, in numerous cases, the corneas and other organs

were removed beyond the alleged 6 hour limit. In fact, the

Respondents failed to give any notice whatsoever to the

relatives prior to the harvesting and sale of a family

member’s organs.

It is interesting to note that the Los Angeles County

Coroner’s Office now obtains the written and/or telephonic

consent prior to the removing of any organs. This simple

due process could have been afforded the Respondents.

CONCLUSION

For these reasons, the petition should be denied.

Respectfully submitted,