Petition for Writ of Certiorari — Albrecht v. Treon

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uprems Court US.

45 ()) 10-687 — Nov 22 2p

No. OFFICE OF THe

Jn the Supreme Court of the United States

MARK ALBRECHT; DIANE ALBRECHT, Both

individually and on behalf of others similarly situated,

Pelitioners,

BRIAN TREON, M.D., Individually and in his official capacity

as Coroner of Clermont County, Ohio, and on behalf of others

similarly situated; BOARD OF COUNTY COMMISSIONERS

OF CLERMONT COUNTY, OTTO, for itself and on behalf

of others similarly situated; MARY WALKER, in her capacity

as commissioner of Clermont County, Ohio, and on behalf

of others sumilarly situated; BOB PROUD, in his capacity

as commissioner of Clermont County, Ohio, and on behalf

of others similarly situated; SCOTT CROSWELL, in his

capacity as commissioner of Clermont County, Ohno,

and on behalf of other similarly situated,

Respondents

On Petition for Writ of Certtorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

John Hl. Metz, Esq. Patrick J. Perotti, Esq

1117 Edwards Road Counsel of Record

Cincinnati, OTP 45208 DworkKEN & Bernstein Co, LPA

(513) 321-8844 60 South Park Place

(513) 321-6389 fax Painesville, OH 44077

metzlegal@aol.com (440) 352- 330]

(440) 352 3469 fax

pperotti@dworkenlaw.corm

November 22, 2010

Attorneys for Petitioners

Becker Gallagher - Cincimau, OL + Washington, D-C. - 800.890.5001

QUESTIONS PRESENTED FOR REVIEW

Whether the fundamental structure and principles

of federalism prevent a federal court from retroactively

applying a state supreme court determination -that

under state law next of kin have no “legitimate claim

of entitlement” in the human body parts of their

deceased loved ones for burial post autopsy —where the

federal court previously announced that such interest.

exists and found that it rose to the level ofa legitimate

Claim of entitlement protected by the Fourteenth

Amendment?

Whether the question specifically left open in Stop

the Beaches -should a jgudtetal — decision” which

eliminates an established property right be analyzed

under peneral due process principals or under the

‘Takings Clause -be answered per the Stop the Beach

4member plurality (Takings Clause) or per the dissent

(general due process)?

TABLE OF CONTENTS

QJuestions Presented for Review

Table of Authorities

Summary

Opimions Below

Jurisdictional Statement

Constitutional and Statutory Provisioius

Statement of the Casi

Statement of Facts and Issues

The Decision of the District Court

The Decision of the Sixth Circutt

Reasons for Granting the Petition

Where it has previously been decided as the

law of the Sixth Circuit that) Ohio law

affords the next of kin an interest in the

remains of their deceased loved ones,

fundamental principles of federalism

prevent a federal court from deferring to a

subsequent state supreme court

determination to the contrary

Where it has previously been decided as the

law of the Circuit that Ohio law affords the

next of kin an interest in human remains of

their deceased loved ones, a state supreme

court cannot be permitted to defeat the

constitutional prohibition against taking

property without due process of law by the

simple device of asserting retroactively that

the property interest it} has taken never

Conclusion

Appendix

Appendix A:

Appendix B:

Appendix C:

Appendix D:

existed atall ...... 17

The principles of stare decisis and the

precedent and local rules of the Sixth Circuit

prevent a panel of the Circuit from rendering

a decision which overrules a prior reported

decision of the Circuit holding that Ohio law

affords the next of kin an interest in the

remains of their deceased loved ones . 22

United States Court of Appeals

for the Sixth Circuit’ Opinion

dated 8/24/10 ....... wearer ot:

United States District Court for

the Southern District of Ohio

Order dated 5/15/09 ......... 20a

United States District Court for

the Southern District of Ohio

Judgment dated 5/15/09 ..... 32a

United States Supreme Court

Kntry dated 6/5/2008 ........ 84a

Appendix It

Appendix I

Appendix G

United States District. Court for

the Southern District of Ohio

Order dated 3/12/2007 69a

United States Court of Appeals

for the Sixth Circuit Order dated

5/3/2007 qo . &4a

United States District Court for

the Southern District of Ohio

Certification Order dated

3/16/2007 S9a

TABLE OF AUTHORITIES

CASES

Abbeville Gen. Hosp. v. Ramsey,

3 F.3d 797 (5th Cir. 1993) ... 16

Ark. Chronicle v. Easley,

321 I. Supp. 2d 776, 790-791 (B.D. Va. 2004)

revd on other grounds, Ark. Chronicle v.

Murphy, 183 Fed. Appx. 300 (4th Cir. 2006) . 15

Brinkerhoff-Faris Trust & Sav. Co. v. Hill,

281 U.S. 673 (1930) + apse te go, ee .

Brotherton v. Cleveland,

923. F.2d 477 (6th Cir. 1991) ........... passim

Collins v. Crabbe,

1999 U.S. App. LEXIS 533 (6th Cir. 1999) .... 8

Dennis v. Higgins,

ER SFL. Dp a ar Lh

Dickerson v. United States,

530 U.S. 428 (2000) .......... Oe ee 2A

Hollingsworth v. Perry,

130 8. Ct. 705 (2010) ee ear reey G Las 24

Howlett v. Rose,

406 U.S. S56 (1980) .. 2. ccc wee en cecu: 16

Hughes v. Washington,

Se Gee. CO CUE) nn en ees ewe teen 18

Kuhn v. Fairmont Coal Co..

ot O).0o. Oe CEBU) 2. ek es Sore eae F

Legal Envtl. Assistance Found. v. Pegues,

904 F.2d 640 (11th Cir. 1990) .......... .. 16

Marbury v. Madison,

SRI ORS gh | s ) ee 16

Monongahela Navigation Co. v. United States,

SMe Pe ee Oa. PO i se ee ees 7

Randall v. Sorrell,

eee Oe ee CD gc ee ee ween 24

Richards v. Jefferson County,

517 U.S. 793 (1996), citing Brinkerhoff-Faris

Trust & Sav. Co. v. Hill, 281 U.S. 673 (1930). 18

Salmi v. Sec’y of Health & Human Servs.,

Tre ©.20 Geo (60m Cit. 1985) ........- 600: 23

Stop The Beach Renourishment, Inc., v. Florida

Dep't Of Envtr. Prot.,

U.S. , 1308. Ct. 2592,

Soe Oe ee ee ee oa ee eee se passim

Thomas v. Am. Home Prods.,

ll ROS oe Oe) 15

United States Term Limits v. Thornton,

oo GIS ey, 25...) a a a a 15

West v. American Tel. & Tel. Co.,

ee es eee ED gc kc ois cess Vw a ee eee ee 11

vil

Whaley v. County of Tuscola ex rel. Tuscola County

Bd. of Comm'rs,

O60 F.0d 1311 (6th Cw. 1995) .« .....5455 passim

Workman v. Levy,

Case No. 3:01-0296 (M.D. Tenn. May 15,

ae ee ee ee 8

CONSTITUTION

oo be ee a es a te ee 8 2

U.S. Const.amend. ALV .. ww ck ee ee passim

STATUTES AND RULES

ee ee eR oe ee BE UO as 2

ee ee 8 ce 6 oe ee passim

Onio Reviseg Code § 313.14 ...........-.6ce-- 10

MONEE tes das Wie ey es Te acs LZ

Oe ee e's GMa, We a Se ak 12

Pees We ake BE eas a eed bales. 6 eee eR eee i2

Pee a eae TARE ok 6 ee eee ee ee 5

weesrts © eet 1:09. SOG... sc os tw eke awa wens 23

SUMMARY

In Stop the Beach this court dealt with the coramon

issue of so called judicial taking of property. The court

split and did not answer the key question—which

Justice Breyer said should be “left for another

day’ —whether judicial takings are properly analyzed

under the general due process clause or the Takings

Clause.

The court also did not answer the thorny issue

whether determination of state law on the existence

of a property right in the first instance, to trigger

Fourteenth Amendment analysis, must be made by a

state court or can properly be made by a federal court

under Erie v. Tompkins.

This case presents those issues in the context of a

fundamental aspect of one of the most basic human

rights—the burial or cremation of your dead family

member (“sepulcher”). It questions whether a federal

circuit court which found a_ protectable property

interest in next of kin for sepulcher after autopsy may

retroactively apply a later state supreme court decision

abolishing that right.

OPINIONS BELOW

The relevant opinions in this matter were issued by

the U.S. District Court in Albrecht v. Tryon, Albrecht

v. Treon, 2007 U.S. Dist. LEXIS 18613 (S.D. Ohio Mar.

16, 2007), by the U.S. Sixth Circuit in Albrecht v.

Treon, Case No. 09-3703, 2010 FED App. 0260P, 2010

U.S. App. LEXIS 17659 (6th Cir. 2010), and by the

Ohio Supreme Court in Albrecht v. Tryon, 118 Ohio

St.3d 348 (2008), 2008-Ohio-2617.

JURISDICTIONAL STATEMENT

Petitioners respectfully requests this Court to grant

their petition for a Writ of Certiorari to review the

Sixth Circuit’s decision in Albrecht v. Treon, Case No.

09-3703, 2010 FED App. 0260P, 2010 U.S. App. LEXIS

17659 (6th Cir. 2010) which was decided on August

24, 2010. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The relevant constitutional and _=— statutory

provisions 1n the suit are:

Amendment 14, U.S. Constitution

1. Ail persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. 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 property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

Armendment 5, U.S. Constitution

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shal] any person be subject for the

same offense to be twice put in jeopardy of life or

limb; nor shail be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

42 U.S.C. §1983:

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

jurisdiction 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 equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to be

a statute of the District of Columbia.

STATEMENT OF THE CASE

Petitioners brought this action in the United States

District Court for the Southern District of Ohio, on

behalf of themselves and others similarly situated,

pursuant to 42 U.S.C. Section 1983 which provides

redress for the violation of rights secured by the

Constitution and laws of the United States.

Petitioners’ claim was that the Coroner of Clermont

County, Ohio, violated Petitioners’ protected rights

when he destroyed their son’s brain, following autopsy

and after it was admittedly no longer needed by the

Coroner. The Coroner provided no notice to

Petitioners that their son’s brain had been retained

when the rest of their son’s remains were released to

Petitioners and did not afford Petitioners the

opportunity to direct the disposition of their son’s

brain in accordance with their personal and religious

beliefs. It is admitted that no state interest was

served by destroying the brain rather than returning

it.

Prior to this action, the Sixth Circuit had

determined in Brotherton v. Cleveland, 923 F.2d 477,

482 (6th Cir. 1991) that the aggregate of rights

granted by the State of Ohio to the next of kin rose to

the level of a federally protected “legitimate claim of

entitlement” in the body of a deceased loved one,

actionable under the U.S. Constitution, 14”

Amendment. Despite this, and in the context of

protests by the coroner that allowing next of kin their

federal rights would subject the government to liability

of “millions of dollars,” the district court declined to

follow Brotherton and instead “certified” the already

answered question of whether the Petitioners had a

constitutionally protected property interest in their

son’s brain to the Ohio Supreme Court. In a decision

criticized in a lead law review article as ‘legislation

from the bench,’ and recently rejected by the New York

Supreme Court stating “we decline to follow it” —but

rendered in the context of loud cries by defendant of

how much liability would “cost”—the Ohio Supreme

Court, in 2008, stated that there is nw constitutionally

protected interest in the brain after autopsy is

complete and the brain is no longer needed by the

state. Albrecht v. Treon, 118 Ohio St. 3d 348 (2008).

This overruled the federal law announced by the Sixth

Circuit seventeen years earlier and retroactively

destroyed plaintiffs’ federally protected rights.

Instead, this Sixth Circuit panel sought to allow the

state court to make a pronouncement for the purpose

of retroactively overturning vested federal rights. This

panel’s fiat clearly violated the Sixth Circuit’s own

internal operating procedure. (6th Cir. I.0.P. 26 which

provides that one panel may not unilaterally overrule

a prior panel’s ruling).

Defendants moved for judgment on the pleadings

pursuant to Civ. R. 12(c) on the basis of the Ohio

Supreme Court’s decision. On May 15, 2009 the

District Court granted Defendants’ motion for

judgment on the pleadings based on the Ohio Supreme

Court’s answer to the certified question. Albrecht v.

Treon, Case No. 1:06cv274, 2009 U.S. Dist. LEXIS

44721 (S.D. Ohio, May 15, 2009).

Petitioners appealed the trial court’s decision on

the basis that the case was controlled by the Sixth

Circuit’s decisions in Brotherton and Whaley v. County

of Tuscola ex rel. Tuscola County Bd. of Comm’rs, 58

F.3d 1111 (6th Cir. 1995). On August 24, 2010 the

Sixth Circuit panel affirmed the district court decision.

STATEMENT OF FACTS AND ISSUES

At the outset, it is repeated that this suit made no

challenge to the coroner’s performance of the autopsy,

removal of the brain and other organs for forensic

exam, or retention of the body and the brain for as long

as needed to complete the autopsy and maintain

evidence. The challenge was solely to the retention and

destruction of the brain without notice, after there was

admittedly no longer any governmental interest in it.

Petitioners Mark Albrecht and Diane Albrecht,

plaintiffs below, were the parents of Christopher

Albrecht, who is deceased. His death occurred while

Brotherton was, in the words of the U.S. Court of

Appeals, the “law of this Circuit.”

The defendant Coroner took possession of his body

and performed an autopsy. Although the body was

returned to his parents for burial, Christopher

Albrecht’s brain was not. The brain was removed for

testing and then after testing, destroyed. The coroner

never informed Petitioners that he had retained their

son’s brain when his body was released to them. As a

result, Petitioners buried their son without all of his

body parts, and without any notice from Defendants of

that fact. Petitioners never gave consent er permission

to Defendants to keep their son’s brain or to destroy it

as “waste.”

The brain is a crucial part of the body for burial

purposes and Petitioners were deprived of their right

to receive the brain for interment and humane

disposition in accordance with their personal and

religious beliefs. It is this conduct, not the retention of

the brain for examination, which violated Petitioners’

protected interest in the remains of their deceased

loved one.

Christopher Albrecht’s brain was not the only

organ removed and examined during the autopsy, but

the others were returned. The only difference was that

the brain takes longer to examine, so it was

administratively “inconvenient” to return it and so the

coroner did not, even though Brotherton was the state

of federal law.

With regard to the rights of the next of kin to

possess the remains of their next of kin for disposition

in accordance with their personal and religious beliefs,

the short delay required for the examination of the

brain is no valid basis for distinguishing Christopher's

brain from his body generally or from the other organs

which were returned to Petitioners once their

examination was completed. No interest of the state

would have been impaired by releasing Christopher's

brain for disposition as directed by his parents once its

examination had been completed, just as had been

done with Christopher’s body and other organs.

Petitioners brought this action on behalf of

themselves and others similarly situated in United

States District Court for the Southern District of Ohio

pursuant to 42 U.S.C. Section 1983 against the

Coroner of Clermont County, Ohio, and against the

Board of Commissioners of Clermont County.’

Petitioners’ claim rested on the Sixth Cuircuit’s

decisions in Brotherton and Whaley.

In Brotherton, where the coroner had removed and

failed to return the corneas of the deceased, the Sixth

Circuit looked at the rules and understandings related

to the remains of decedents in Ohio and concluded at

Petitioners also sought to certify a class of defendants comprised

of the coroners of the other counties in Ohio.

923 F.2d 482 that “the aggregate of rights granted by

the state of Ohto to Deborah Brotherton rises to the

level of a ‘legitimate claim of entitlement’ in Steven

Brotherton’s body, including his corneas, protected by

the due process clause of the fourteenth amendment.”

This legitimate claim of entitlement in the body

covered the corneas in Brotherton as it covers the brain

in the instant case.

The Sixth Circuit in Whaley, 58 F.3d at 1114

(another case of coroner failure to return body parts

after autopsy) recognized Brotherton as “the law of this

Circuit” on the interest of next of kin in the remains of

their deceased loved ones (“|blecause Brotherton is the

law of this Circuit, our decision in the present case

turns on a comparison of Ohio and Michigan law”).

The Circuit reiterated that there is a_ federally

protected right which is violated when a coroner fails

to return a body part to the next of kin.

The Sixth Circuit then reached the same conclusion

in Collins v. Crabbe, 1999 U.S. App. LEXIS 533 (6th

Cir. 1999) (“this court has twice, in somewhat

analogous circumstances, held that under the law of

states other than ‘Tennessee, a_ plaintiff had a

constitutionally protected property interest in the body

of a deceased next-of-kin. See Whaley v. County of

Tuscola, 58 F.3d 1111, 1115-16 (6th Cir. 1995);

Brotherton v. Cleveland, 923 F.2d 477, 480 (6th Cir.

1990)”); as did the court in Workman v. Levy, Case No.

3:01-0296, (M.D. Tenn., May 15, 2007) (where the

court noted, citing Whaley, as well as Brotherton and

Collins, that “[t]he Sixth Circuit Court of Appeals has

recognized a _ constitutionally protected property

interest in the body of a deceased next-of-kin”).

Notwithstanding this precedent, the panel which

decided the instant case departed from the law of the

Circuit. It is that issue which presents the basis for

this request for certification to this U.S. Supreme

court.

The panel stated that. this case was distinguishable

from Brotherton and Whaley because Christopher's

brain was ‘retained by the state of Ohio for criminal

investigation purposes.” However, every autopsy is a

“legitimate forensic investigation” — if not, the Coroner

would have no right whatsoever to take the body parts

in the first place. That is a pseudo-distinction without

a difference.

But Petitioners’ claim was not about the state’s

police power right to conduct an autopsy or the right to

remove their son’s organs for examination during that

procedure. Those state interests take precedence over

the Petitioners’ interest in their son’s remains while

the remains are needed for forensics or evidence. But

after the brain was no longer needed for examination,

Petitioners had a right to direct its disposition. No

interest of the state would be impaired by releasing

Christopher's brain for disposition as directed by his

parents once its examination had been completed, just

as had been done with Christopher’s body and other

organs.

Specifically, Petitioners were entitled to notice that

their son’s brain was retained for examination and an

opportunity to direct the disposition of all of their son’s

remains in accordance with their personal and

religious beliefs. No such notice or opportunity was

provided. Petitioners’ had a protected interest in

Christopher’s remains such that they were entitled to

notice and the right to dispose of them in accordance

with their personal and religious beliefs. (Qhio law

even requires the Coroner give notice to next of kin

and listing of personal property of the deceased |Ohio

Revised Code § 313.14)

May a federal court make a determination, under

Erie, of the state law question of the existence of

protectable right for purposes of subsequent federal

14° Amendment analysis?

In Stop The Beach Renourishment, Inc., v. Florida

Dep't Of Envir. Protection, U.S. , 1380 S. Ct.

2592, 177 L. Ed. 2d 18, at 2608 this court explained:

[Wle make our own determination, without

deference to state judges, whether the

challenged decision deprives the claimant of an

established property right. That is unsurprising

because if is what this Court does when

determining state-court compliance with all

constitutional imperatives. We do not defer to

the judgment of state judges in determining

whether, for example, a state-court decision has

deprived a defendant of due process or subjected

him to double jeopardy.

But 14° Amendment analysis is, first, based on the

existence of a property interest at state law. This

court explained that on that issue, a federal court will

“accept the determination of the state court.” Pg.

2608. What if that decision has previously been made

by a federal court sitting in diversity, or acting based

on Erie?

The Sixth Circuit in Brotherton not only decided

the federal question of whether the underlying

property interest was protected, it also evaluated the

bundle of rights Ohio law afforded the next of kin, and

determined that that bundle was “property” for

Fourteenth Amendment purposes and protected by

federal due process.

This appeal posits that it is perfectly appropriate

for a federal court to make such a determination.

Federal courts have independent jurisdiction in the

administration of state laws. It is the right and duty of

the federal courts to exercise their own judgment as to

the meaning and effect of those laws. Kuhn vu.

Fairmont Coal Co., 215 U.S. 349, 359 (1910). The

jurisdiction of federal court in this regard 1s coordinate

with, and not subordinate to, that of the state courts.

Id. As this Court explained in West v. American Tel. &

Tel. Co., 311 U.S. 223, 237 (1940) “it is the duty of the

[federal court] in every case to ascertain from all the

available data what the state law is and apply it

+ ok ok

The tension present by the present appeal, and one

of the issues requiring clear guidelines is a state court

subsequently seeking to “overrule” such a federal

decision, not prospectively but retroactively. The Ohio

Supreme Court, when faced with a class action lawsuit

against the coroners’ of 87 of the 88 counties’ in Ohio,

with the stroke of a pen ‘overruled’ the Sixth Circuit’s

ba . ° - ° ‘ ° ‘ : ‘ .

Strictly speaking, Summit County has a medical examiner

rather than a coroner.

3 . - - . -

Hamilton County previously settled a suit on this basis and was

not named in this action.

decision in Brotherton. The Ohio Supreme Court did

so by the simple expedient of purporting to decree that

there is, going forward, no interest in the next of kin

under Ohio law’, but also that there ‘never had been.’

A state court may dictate the contours and existence of

what is property under its laws, but it may not dictate

what federal protections are afforded to property

already held as such by a federal court acting within

its jurisdiction.

The Sixth Circuit panel had no night to ‘defer’ to the

Ohio Supreme Court to insulate its coroners from

habihty under 42 U.S.C. 1983. When the Sixth Circuit

purported to allow the Ohio Supreme Court to make

its own determination of what the federal law in the

Sixth Circuit was on this issue, it violated the

fundamental principles of federalism. This is a frontal

attach on federalism and creates a hole in the balloon

which undermines all confidence in the Supremacy of

the law.

The Decision of the District Court

On May 15, 2009 the tral court granted

Defendants’ motion for judgment on the pleadings as

to Petitioners’ federal claims and dismissed all of

Petitioners’ state law claims. The court concluded

The Supreme Court of Ohio decided in Albrecht

v. Treon that next of kin did not have any

‘In part the Ohio Supreme Court’s decision was based on the

enactment of R.C. 313.123 effective on August 17, 2006. R.C.

313.123(B) declares specimens retained by acoroner to be medical

waste. Pursuant to R.C. 1.48 R.C. 313.123 has only prospective

application, and does not apply to Petitioners’ claims.

constitutionally cognizable interest in the

autopsy specimens of the decedent that were

removed and retained by the coroner for

forensic examination and testing. Defendants

therefore are entitled to judgment on Plaintiffs’

federal law claims. The Court declines to

exercise supplemental jurisdiction over

Plaintiffs’ remaining state law claims. Albrecht

v. Treon.

The Decision of the Sixth Circuit

On appeal the Sixth Circuit affirmed the trial

court’s decision granting Defendants’ motion for

judgment on the pleadings. The Sixth Circuit

concluded that the district court “appropriately

deferred to the Ohio Supreme Court’s interpretation of

Ohio law in finding that the Albrechts did not have a

property interest in the son’s body parts the coroner

retained for investigative purposes.” Albrecht v. Treon,

2010 FED App. 0260 P, page 9.

REASONS FOR GRANTING THE PETITION

The District Court certified a question to the Ohio

Supreme Court concerning the property interests of a

next of kin in the remains of their deceased loved ones.

Petitioners objected on the basis that, under the

circumstances of this case, certification violated the

fundamental principles of federalism because _ it

afforded the Ohio Supreme Court the opportunity to

retroactively eliminate a vested substantive right that

the Sixth Circuit had declared under federal law.

With no surprise, and given the green light by the

panel of the Sixth Circuit, the Ohio Supreme Court

neutered 42 U.S.C. §1983 and concluded that “nothing

in the United States Constitution, the Ohio

Constitution, Ohio statutes, or common law establish

a protected right in autopsy specimens in Ohio.” This

“end-run” procedure allows state courts to create their

own immunity by overruling prior federal law.

1. Where it has previously been decided as

the law of the Sixth Circuit that Ohio law

affords the next of kin an interest in the

remains of their deceased loved ones,

fundamental principles of federalism

prevent a federal court from deferring toa

subsequent state supreme _ court

determination to the contrary.

Both the majority and the dissent in the Ohio

Supreme Court’s answer to the question certified by

the trial court recognized that the issue was whether

the “state law in effect at the time of the incident gave

them a property interest in their deceased son’s body

parts.” Albrecht v. Treon, 118 Ohio St. 3d at 351; 118

Ohio St. 3d at 359, Pfeifer J., dissenting. However, the

Sixth Circuit had already made a determination that

the bundle of rights Ohio recognized in the remains of

a deceased amounted to a “legitimate claim of

entitlement” in the next of kin. That was the law of

the Sixth Circuit in effect at the time of the incident

which gave rise to Petitioners’ claims. And that law

gave the Petitioners a 14'° Amendment interest in

their son’s body parts. Fundamental principles of

federalism prevent the Ohio Supreme Court from

making an ex post facto determination that not only

overrules the Sixth Circuit but also destroys a vested

night.

In the context of a 42 U.S.C. §1983 action, it is fully

appropriate for the federal court to conduct the

analysis of the substantive nature of the interest

created by the state. The Sixth Circuit has already

made that evaluation of Ohio law, and concluded that

under Ohio law there is a property interest in the

remains of a deceased loved and that that interest is

protected by the Fourteenth Amendment.

Federalism is often viewed from the perspective of

the states—“there is a ‘special deference owed to state

law and state courts in our system of federalism,

** *” Thomas v. Am. Home Prods., 519 U.S. 913, 917

(1996), Rehnquist, C.J., dissenting. But, as the court

recognized in Ark. Chronicle v. Easley, 321 F. Supp. 2d

776, 790-791 (f.D. Va., 2004) rev'd on other grounds,

Ark. Chronicle v. Murphy, 183 Fed. Appx. 300 (4th Cir.

2006), “federalism is a two-way street founded

upon mutual respect between federal and _ state

courts.”

As Justice Kennedy explained in his concurring

opinion in United States Term Limits v. Thornton, 514

U.S. 779, 838 (1995)

Federalism was our Nation’s own discovery. The

Framers split the atom of sovereignty. It was

the genius of their idea that our citizens would

have two political capacities, one state and one

federal, each protected from incursion by the

other. (Emphasis added.)

It is the “each protected from incursion by the other”

aspect which is operative here, because with regard to

federal rights, as noted by this Court in Dennis v.

Higgins, 498 U.S. 439, 450 (1991), the Supremacy

Clause ““secure|s}] federal rights by according them

priority whenever they come in conflict with state

law.” In Howlett v. Rose, 496 U.S. 356, 371 (1990),

this Court explained that “the Supremacy Clause

forbids state courts to dissociate themselves from

federal law because of disagreement with its content or

a refusal to recognize the superior authority of its

source.” The Supremacy clause, as the court in Legal

Environmental Assistance Found. v. Pegues, 904 F.2d

640, 643-644 (llth Cir. 1990) noted, “states a

fundamental structural principle of federalism.”

The Sixth Circuit’s decision to ‘defer’ to the Ohio

Supreme Court violates the most fundamental

structural principle of federalism. It allowed the Ohio

Supreme Court to “dissociate [itself] from federal law”

and make its own determination about whether Ohio

state agencies are complying with federal law, a

determination that is ultimately vested in the federal

courts. When given the legal opportunity what state

would not grant themselves immunity? In earlier

years, one can imagine if a federal court “deferred” to

the Mississippi Supreme Court as to whether lynching

violated a black citizen’s due process right.

It is clearly the province of federal courts decide

federal law. As this Court long ago held in Marbury vu.

Madison, 5 U.S. 137, 177 (1803), “lilt is emphatically

the province and duty of the judicial department to say

what the law is.” With respect to the issue at hand,

the court in Abbeville Gen. Hosp. v. Ramsey, 3 F.3d

797, 804 (5th Cir. 1993) explained that “general

principles of federalism, * * * do not permit states to be

final arbiters of their compliance with federal law.”

This Court reached a similar conclusion in Howlett v.

Rose, 496 U.S. at 366 when it observed that a state

court’s construction of immunity “raise[d] the concern

that the state court may be evading federal law and

discriminating against federal causes of action.”

And that is exactly the result of the Sixth Circuit’s

action in this case. The Ohio Supreme Court became

the final arbiter of the coroners’ compliance with pre

existing and announced federal law.

2. Where it has previously been decided as

the law of the Circuit that Ohio law affords

the next of kin an interest in human

remains of their deceased loved ones, a

state supreme court cannot be permitted

to defeat the constitutional prohibition

against taking property without due

process of law by the simple device of

asserting retroactively that the property

interest it has taken never existed at all.

The Sixth Circuit’s 1991 determination that Ohio’s

rules and understandings with respect to the next of

kin’s interest in the remains of their deceased loved

ones rose to the level of a “legitimate claim of

entitlement” was the law of the Sixth Circuit at the

time petitioner’s rights were violated. The Ohio

Supreme Court cannot retroactively abolish that in

2008.

The clearly established law of the Sixth Circuit at

the time Christopher’s brain was removed, retained,

and destroyed gave Petitioners a federal cause of

action for the violation of their interest in

Christopher’s human remains. Brotherton gave

Petitioners an existing nght, a right which was not

abridged until the Ohio General Assembly changed the

law after Petitioners filed suit. That is totally proper,

but Petitioners’ cause of action accrued long before

that new statute was enacted. Petitioner's cause

accrued when Christopher’s brain was disposed of as

medical waste and gave Petitioners a vested right. As

Justice Stevens put it in his concurring opinion in

Hughes v. Washington, 389 U.S. 290, 295-297 (1967) “a

State cannot be permitted to defeat the constitutional

prohibition against taking property without due

process of law by the simple device of asserting

retroactively that the property it has taken never

existed at all.” But that is what the Ohio Supreme

Court did.

However, a further unanswered question presented

by this case is one pinpointed in Stop the Beach. Does

the fact that the property or quasi property right in

this matter is being eliminated by judicial decree and

not legislative action make a difference? As this court

said at 2606, in cases of this type “[wle are talking

here about judicial elimination of established private

property rights.

In Richards v. Jefferson County, 517 U.S. 793, 804

(1996), citing Brinkerhoff-Faris Trust & Sav. Co. v.

Hill, 281 U.S. 673, 681-682 (1930) this Court explained

that “[w|hether acting through its judiciary or through

its legislature, a State may not deprive a person of all

existing remedies for the enforcement of a right, which

the State has no power to destroy, unless there is, or

was, afforded to him some real opportunity to protect

it.”

Yet the same question repeated in Stop the Beach

and still remains unclear as to its rules and

requirements. This court announced at 2602,

If a legislature or a court declares that what

was once an established right of private

property no longer exists, it has taken that

property, no less [***24] than if the State had

physically appropriated it or destroyed its value

by regulation.

But is the answer governed by the Takings clause or

the general due process clause? Four members of this

court used the general due process clause to address

the question in Stop the Beach, but other Justices

disagreed, and asserted at 2615:

Given that the constitutionality” of a judicial

decision altering property rights “appears to

turn on the legitimacy” of whether the court’s

judgment eliminates or changes established

property rights “rather than on the availability

of compensation, . . . the more appropriate

constitutional analysis arises under general due

process principles rather than under the

Takings Clause.

This is extremely significant in all cases of this type,

and such cases are becoming too common. Lacking

political force to enact legislation to obtain a certain

result, interest groups turn to the court to accomplish

their goal by judicial legislation. Courts are not

designed for this task, and the mischief is compounded

under the ‘free for all’ rubric of ‘substantive due

process’ where ‘the law is whatever I say it is.’ Such

touchstone is the genesis of “activist courts.”

The tension on this issue and the immediate need

for guidance is illustrated plainly by the parry and

thrust of the differing members of this court in the

multiple opinions in Stop the Beach.

The Court would be on strong footing in ruling

that a judicial decision that eliminates or

substantially changes established property

rights, which are a legitimate expectation of the

owner, is “arbitrary or irrational” under the Due

Process Clause.

Pg. 2615

The judiciary historically has not had the right

or responsibility to say what property should or

should not be taken.

Pg. 2616

I cannot join Parts IJ and III, however, for in

those Parts the plurality unnecessarily

addresses questions of constitutional law that

are better left for another day.

Pg. 2618

(T]he approach the plurality would take today

threatens to open the federal court doors to

constitutional review of many, perhaps large

numbers of, state-law cases in an area of law

familiar to state, but not federal, judges. And

the failure of that approach to set forth

procedural limitations or canons of deference

would create the distinct possibility that federal

judges would play a major role in the shaping of

a matter of significant state interest -- state

property law.

Pg. 2619

The Sixth Circuit allowed the Ohio Supreme Court

to determine not just what the law ts in Ohio with

regard to the rights of the next of kin in the remains of

their deceased loved ones, but what the law was ata

point of time in the past, a point in time when the

Sixth Circuit had already determined that the next of

kin in Ohio had an interest protected by the

Fourteenth Amendment. Deference to that

determination deprives Petitioners of an opportunity

to defend their substantive rights as articulated by the

Sixth Circuit.

The Ohio Supreme Court’s analysis was necessarily

colored by not only the Sixth Circuit’s decision in

Brotherton but also by the potential liability of all Ohio

coroners. The Sixth Circuit’s deference to the Ohio

Supreme Court allows the Ohio Supreme Court to go

back in time and overrule Sixth Circuit precedent,

thereby allowing the Ohio Supreme Court, rather than

the federal courts, to determine Ohio’s compliance with

federal law.

Should this approach be allowed. Under traditional!

takings analysis, this outcome would not survive.

Under broader cue process analysis, the question is a

free for all. The duty of federalism would require that

this result not be allowed, but the Sixth Circuit missed

that boat in favor of letting the state judiciary ‘find its

way. But the state judiciary must, first and foremost,

comply with the U.S. Constitution. It did not, by

ignoring federal governing law in favor of an outcome

driven ruling.

Illegitimate and unconstitutional practices get

their first footing in that way, namely, by silent

approaches and shght deviations from legal

modes of procedure.

It is the duty of courts to be watchful for the

constitutional rights of the citizen, and against

any stealthy encroachments thereon

Monongahela Navigation Co. v. United States, 148

U.S. 312, 325-326 (U.S. 1893)

3. The principles of stare decisis and the

precedent and local rules of the Sixth

Circuit prevent a panel of the Circuit from

rendering a decision which overrules a

prior reported decision of the Circuit

holding that Ohio law affords the next of

kin an interest in the remains of their

deceased loved ones.

Finally, this case raises an area of critical

responsibility assumed by this Honorable court. Under

the law of the Sixth Circuit at the time at issue under

Brotherton and Whaley Petitioners had a clearly

established right to direct the disposition of

Christopher’s brain after it was no longer needed for

examination. There is no valid basis for distinguishing

Brotherton and Whaley from this case. Petitioners have

the right to have their case judged on its merits under

the law that was in effect at the time the conduct at

issue occurred.

The failure of the panel in this case to follow

Brotherton and Whaley violates the principles of stare

decisis and the precedent and local rules of the Sixth

Circuit.

First, a panel of the Sixth Circuit may not overrule

prior reported decisions of the Sixth

Circuit—-Brotherton and Whaley. The court in Salmi

v. Secretary of Health & Human Services, 774 F.2d

685, 689 (6th Cir. 1985) explained that

A panel of this Court cannot overrule the

decision of another panel. The prior decision

remains controlling authority unless” an

inconsistent decision of the United States

Supreme Court requires modification of the

decision or this Court sitting en banc overrules

the prior decision.

Such a result is also in direct contravention of the

Circuit’s own rules. Sixth Circuit 1.0.P. 206 provides

that a panel may not overrule a prior, published

Circuit decision:

panel opinions are binding on subsequent

panels. Thus, no subsequent panel overrules a

published opinion of a previous panel. Court en

banc consideration is required to overrule a

published opinion of the court.

The panel’s decision in this case violates both Circuit’s

decisional precedent and the Circuit’s local rules.

This court has supervisory responsibility on

violations of the principle of stare decisis. As this

court explained in Randall v. Sorrell, 548 U.S. 230,

243-244 (2006) “{tlhe Court has often recognized the

‘fundamental importance’ of stare decisis, the basic

legal principle that commands judicial respect for a

court’s earlier decisions and the rules of law they

embody.” This is so because, as the Randall court

observed “stare decisis ‘promotes the evenhanded,

predictable, and consistent development of legal

principles, fosters relhance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process.” As a result, “[s]tare decisis thereby

avoids the instability and unfairness that accompany

disruption of settled legal expectations.” Id. Yet that

is exactly what the decision here appealed from does.

As noted above, Petitioners had more than settled

legal expectations, they had a vested right in an

accrued cause of action. And deference to the Ohio

Supreme Court’s ex post facto determination unfairly

disrupts Petitioners’ settled legal expectations.

This Court noted in Dickerson v. United States, 530

U.S. 428, 437 (2000) that “The law in this area is

clear. This Court has supervisory authority over the

federal courts * * * .”

In Hollingsworth v. Perry, 130 S. Ct. 705, 713

(2010) this Court recently explained that “[t}]his Court

also has a significant interest in supervising the

administration of the judicial system.” Accordingly,

one of the “Considerations Governing Review on

Certiorari” outlined in Sup. Ct. R. 10(a) is whether “a

United States court of appeals * * * has so far departed

from the accepted and usual course of judicial

proceedings * * *as to call for an exercise of this

Court’s supervisory power.”

The decision that is the subject of this Petition is

such a departure from the usual course of judicial

proceedings as to call for an exercise of this Court’s

supervisory power. The decision violates both the

precedent and the local rules of the Sixth Circuit. The

decision also violates the fundamental principle of

stare decisis. Most important, it raised a question

about a key issue life, the rights of the next of kin to

respectful disposition of the remains of their loved

ones. Is an infringement in that context governed by

the due process clause, by substantive due process, or

by the Takings Clause?

This Court should grant petitioner’s petition for a

Writ of Certiorari.

CONCLUSION

For the reasons set forth herein Petitioners

respectfully request this Court grant their Petition for

a Writ of Certiorari.

Respectfully Submitted,

Patrick J. Perotti, Esq. (#0005481)

Counsel of Record

DWORKEN & BERNSTEIN CO, LPA

60 South Park Place

Painesville, Ohio 44077

(440) 352-3391

(440) 352-3469 fax

pperotti@dworkenlaw.com

John H. Metz, Esq. (#0019039)

1117 Edwards Road

Cincinnati, OH 45208

(513) 321-8844

(513) 321-6389 fax

metzlegal@aol.com

Attorneys for Petitioners

APPENDIX

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

APPENDIX

TABLE OF CONTENTS

United States Court of Appeals

for the Sixth Circuit Opinion

Gated G/Z4/10 2... ww ee ces

United States District Court for

the Southern District of Ohio

Order dated 5/15/09 ......... 20a

United States District Court for

the Southern District of Ohio

Judgment dated 5/15/09 ..... 32a

United States Supreme Court

Entry dated 6/5/2008 ........ 34a

United States District Court for

the Southern District of Ohio

Order dated 3/12/2007 ....... 69a

United States Court of Appeals

for the Sixth Circuit Order dated

PD osc. occ ee Woe a as we 84a

United States District Court for

the Southern District of Ohio

Certification Order dated

So rs oar 89a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 09-3703

[Filed August 24, 2010]

MARK ALBRECHT; DIANE ALBRECHT, Both

individually and on behalf of others

similarly situated,

Plaintiffs-Appellants,

BRIAN TREON, M.D., Individually and in his

official capacity as Coroner of Clermont

County, Ohio, and on behalf of others

similarly situated; BOARD OF COUNTY

COMMISSIONERS OF CLERMONT COUNTY,

OHIO, for itself and on behalf of others

similarly situated; MARY WALKER, in her

capacity as commissioner of Clermont

County, Ohio, and on behalf of others

similarly situated; BOB PROUD, in his

capacity as commissioner of Clermont

County, Ohio, and on behalf of others

similarly situated; SCOTT CROSWELL, in his

capacity as commissioner of Clermont

i A ae a a ae a a a a a ae a a ae ae ee a ee eee

County, Ohio, and on behalf of others

similarly situated,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 06-00274—-Susan J. Dlott, Chief District Judge.

Argued: August 6, 2010

Decided and Filed: August 24, 2010

Before: GUY and GRIFFIN, Circuit Judges; HOOD,

Senior District Judge.

COUNSEL

ARGUED: John Henry Metz, LAW OFFICE,

Cincinnati, Ohio, for Appellants. H. Elizabeth Mason,

CLERMONT COUNTY PROSECUTOR'S OFFICE,

Batavia, Ohio, for Appellees. ON BRIEF: John Henry

Metz, LAW OFFICE, Cincinnati, Ohio, Patrick J.

Perotti, DWORKEN BERNSTEIN CoO., LPA,

Painesville, Ohio, for Appellants. H. Elizabeth Mason,

CLERMONT COUNTY PROSECUTOR’S OFFICE,

Batavia, Ohio, for Appellees. Mark D. Landes, David

G. Jennings, Jennifer H. George, ISAAC, BRANT,

LEDMAN & TEETOR, Columbus, Ohio, David G.

Lambert, Paul J. Cristallo, Frederick W. Whatley,

" The Honorable Joseph M. Hood, Senior United States District

Judge for the Eastern District of Kentucky, sitting by designation.

CUYAHOGA COUNTY PROSECUTOR’S OFFICE,

Cleveland, Ohio, for Amici Curiae.

OPINION

HOOD, Senior District Judge. Plaintiffs-Appellants

Mark and Diane Albrecht, et al. (“the Albrechts”)

appeal the district court’s decision to grant judgment

on the pleadings in favor of Defendants-Appellees

Brian Treon, et al. (hereinafter, “Defendants”). The

Albrechts brought a claim pursuant to 42 U.S.C.

§ 1983, alleging that they were denied due process of

law when the defendant coroner performed an autopsy

on the Albrechts’ son’s remains and removed the brain

during the procedure. When the body was returned to

the Albrechts, they were not informed that the coroner

had retained the brain for further study and that it

would be destroyed once the investigation was

complete. The Albrechts claim that the retention and

destruction of their son’s brain, without their

knowledge, deprived them of the right to dispose of

their son’s brain, in violation of the Due Process

Clause of the Fourteenth Amendment. The Albrechts

base this claim on their purported property interest in

their son’s entire body, including his brain. The

Albrechts also brought common law tort claims against

Defendants, over which the district court exercised

supplemental jurisdiction.

The district court was faced with the question of

whether the Albrechts had a constitutionally protected

property interest in their son’s brain after it was

removed and retained for legitimate investigative

purposes. As this was a question of first impression in

Ohio, the district court certified the question to the

Ohio Supreme Court. The Ohio Supreme Court

answered the question in the negative, stating that

there is no constitutionally protected property interest

in human remains retained by the state of Ohio for

criminal investigation purposes. The district court

consequently held that the Albrechts had no property

interest in the brain, and, thus, Defendants were

entitled to judgment on the pleadings. The Albrechts

argue that the Sixth Circuit’s ruling in Brotherton v.

Cleveland, M.D., 923 F.2d 477 (6th Cir. 1991), holding

that a spouse had a protected property interest in her

husband’s corneas, which were removed for donation

purposes, should rule this case, as opposed to the Ohio

Supreme Court’s answer to the certified question.

For the reasons which follow, the judgment of the

district court is AFFIRMED.

I. Factual and Procedural Background

The coroner for Clermont County, Ohio, performed

an autopsy on the Albrechts’ son’s remains. The

autopsy required examination of their son’s brain. In

order to examine and dissect a human brain more

effectively, the jelly-like organ must be soaked in a

formol saline solution for ten to fourteen days, a

process referred to as “fixing” the brain, which firms

the brain tissue for dissection. Due to the lengthy

process of fixing the brain, it is the usual practice of

the coroner to return the remains to next of kin for

disposition without the brain. The coroner did not

inform the Albrechts that he retained their son’s brain

upon return of the body to them. When the

examination of the brain was completed, it was

destroyed in accordance with the coroner’s usual

practice. The coroner did not notify the Albrechts that

the brain was going to be destroyed. The Albrechts

learned that their son’s body was missing the brain

when they received the autopsy report months later,

long after burying their son. The Albrechts filed suit,

claiming a violation of the Due Process Clause of the

Fourteenth Amendment and common law tort liability.

The suit was certified as a class action, and the

Albrechts represent a class of similarly-situated

plaintiffs whose deceased family members’ bodies were

returned to them missing tissues or organs that the

coroner retained for further study in the course of a

criminal investigation.

Il. Standard of Review

“Motions for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c) are analyzed

under the same de novo standard as motions to

dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v.

City of Grand Rapids, 526 F.3d 291, 295 (6th Cir

2008). Courts “must construe the complaint in the

light most favorable to plaintiff,” League of United

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th

‘ir. 2007) (citation omitted), “accept all well-pled

factual allegations as truel,}” id., and determine

whether the “complaint states a plausible claim for

relief],)” Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937,

1950, 173 L. Ed. 2d 868 (2009). However, the plaintiff

must provide the grounds for its entitlement to relief,

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361

(6th Cir. 2001), and that “requires more than labels

and conclusions, and a formulaic recitation of the

elements of a cause of action.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). A plaintiff must

“plead{] factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” /qba!, 129 S. Ct. at 1949.

A plaintiff falls short if she pleads facts “merely

consistent with a defendant’s liability” or if the alleged

facts do not “permit the court to infer more than the

mere possibility of misconduct... .” Jd. at 1949, 1950.

Ill. Discussion

A. Ohio Supreme Court’s Ruling in Albrecht I

The Albrechts argue that under Brotherton uv.

Cleveland, 923 F.2d 477 (6th Cir. 1991), and Whaley v.

County of Tuscola, 58 F.3d 1111 (6th Cir. 1995), they

had a constitutionally protected property interest in

their son’s discarded brain. In Bretherton, the plaintiff

objected to the donation of her deceased husband’s

organs at the hospital. This objection, however, was

not conveyed to the county coroner, who removed the

decedent’s corneas pursuant to an Ohio statute which

“permitted a coroner to remove the corneas of autopsy

subjects without consent, provided that the coroner

has no knowledge of an objection by the decedent, the

decedent’s spouse, or . . . the person authorized to

dispose of the body.” Brotherton v. Cleveland, 923 F.2d

at 478. We reversed the district court’s dismissal of the

plaintiffs § 1983 claims, finding that the plaintiff had

the right to possession of her husband’s body for the

limited purpose of lawfully disposing of it. Jd. At issue

in Brotherton, however, was part of Ohio’s adoption of

the Uniform Anatomical Gift Act, which expressly

granted next of kin the right to dispose of a relative’s

remains. There is no similar statute at issue in this

Case.

Whaley is a direct progeny of Brotherton and arose

under similar facts. The plaintiffs in Whaley were the

next of kin of persons whose bodies were the subject of

autopsies and whose corneas or eyeballs were

removed, either without the consent of the next of kin,

or after the objection of their next of kin. The Whaley

court held that under Michigan law, “the next-of-kin

[have] a legitimate claim of entitlement and thus a

property interest in a dead relative’s body, including

the eyes.” Whaley v. County of Tuscola, 58 F.3d 1111,

1117 (6th Cir. 1995). The Albrechts maintain that

Brotherton and Whaley control the outcome in this

case, arguing that their right to their son’s brain is

constitutionally equal to the plaintiffs’ rights in

Brotherton and Whaley to their relatives’ eyeballs or

corneas. Defendants claim that Brotherton and Whaley

are distinguishable from the facts in this case, because

removal and retention of tissue or organ for donation

purposes, as in Brotherton and Whaley, serve little

function for the state, and, thus, the relatives have

greater property interest in the body parts. However,

removal and retention of tissues or organs for forensic

analysis in furtherance of a criminal investigation

serves an important state function, which is

paramount to the Albrechts’ right to possess their son’s

body in its entirety.

' That statute does not apply here, because this case relates to the

rights of a coroner to possess, examine, and dispose of a corpse,

not the right of the next of kin to object or consent to organ

donation.

The Due Process Clause of the Fourteenth

Amendment prohibits states from depriving “any

person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. “In order to

establish a procedural due process claim, a plaintiff

must show that (1) he had a life, liberty, or property

interest protected by the Due Process Clause; (2) he

was deprived of this protected interest; and (3) the

state did not afford him adequate procedural rights

prior to depriving him of the property interest.”

Women’s Med. Prof Corp. v. Baird, 438 F.3d 595, 611

(6th Cir. 2006) (citation omitted). Property interests

“are defined by existing rules or understandings that

stem from an independent source such as state law-

rules ....” Board of Regents of State Colleges v. Roth,

408 U.S. 564, 577 (1972). “Although property rights

are principally created by state law, whether a

substantive interest created by the state rises to the

leve! of a constitutionally protected property interest

is a question of federal constitutional law. ... The due

process clause only protects those interests to which

one has a legitimate claim of entitlement.” Waeschle v.

Dragovic, 576 F.3d 539, 544-45 (6th Cir. 2009).

The issue on appeal is whether the Albrechts had

a constitutionally protected property interest in their

son’s brain after it was removed during the autopsy.

As noted above, Ohio state law governs the definition

of “property” in Ohio. Board of Regents of State

Colleges v. Roth, 408 U.S. at 577. Because this was an

issue of first impression in Ohio, the district court

certified the following question to the Ohio Supreme

Court:

a protected right under Ohio law in the

decedent’s tissues, organs, blood or other body

parts that have been removed and retained by

the coroner for forensic examination Whether

the next of kin of a decedent, upon whom an

autopsy has been performed, have and testing.

The Ohio Supreme Court accepted the certified

question for review and held that “the next of kin of a

decedent upon whom an autopsy has been performed

do not have a protected right under Ohio law in the

decedent’s tissues, organs, blood, or other body parts

that have been remeved and retained by the coroner

for forensic examination and testing.” Albrecht v.

Treon, 889 N.E. 120, 122;118 Ohio St.3d 348, 350

(2008) (Albrecht IJ).? As a result of that answer, the

district court held that “[b]ecause Ohio law does not

give the next of kin of a decedent upon whom an

autopsy has been performed a protected right in the

decedent’s tissues, organs, blood or other body parts

that have been removed and retained by the coroner

for forensic examination and testing, Plaintiffs action

brought pursuant to 42 U.S.C. § 1983 fails as a matter

of law.” We agree.

This Court addressed the issue in this case on two

previous occasions. Prior to the district court’s ruling

on the motion for judgment on the pleadings, the

Albrechts sought a writ of mandamus directing the

district court to withdraw the certification or a writ of

prohibition directing the district court not to consider

any answer that the Supreme Court might offer to the

* In the relevant case law, the district court case from which this

appeal is taken is referred to as “Albrecht I” and the Ohio

Supreme Court’s opinion answering the district court’s certified

question is referred to as “Albrecht I.”

10a

certified question. We denied the mandamus petition,

stating that “the plaintiffs invoke a holding in a

decision issued in another case on a distinguishable set

of facts. Since Brotherton was decided, changes in Ohio

law suggest another reading may be possible.” /n re

Albrecht, No. 07-3419, slip op. at 3 (6th Cir. May 2,

2007).

In August 2009, we discussed the case at bar at

length in Waeschle v. Dragovic, 576 F.3d 539 (6th Cir.

2009). The facts in Waeschle are nearly identical to the

facts in this case, but Waeschle originated in Michigan,

not Ohio. ivoting the similarities between Michigan

and Ohio property law, we stated, “the [Ohio Supreme]

Court’s decision in Albrecht IT, which explicitly denied

that the next of kin have a right to body parts collected

for forensic examination, suggests that such a right

would probably not be recognized under existing

Michigan law.” Waeschle, 576 F.3d at 548-9. We held

that for the purposes of qualified immunity,

“Waeschle’s alleged constitutionally protected property

right to her mother’s brain is {not clearly established,]”

but cautioned that it did not “determine the existence

or the scope of Waeschle’s right to her mother’s brain

in the present case.” Jd. at 550.

The Albrechts argue that there is a conflict between

Ohio state law and the law of this circuit regarding a

person’s rights to a deceased relative’s body parts. The

Albrechts further argue that the Ohio Supreme Court

decision in Albrecht I, holding that next of kin do not

have a property interest in autopsy specimens

gathered for the purpose of a legitimate investigation

cannot “overrule” the Sixth Circuit decision in

Brotherton, holding that next of kin do have a

lla

protected property interest in the eyes of deceased

relatives, removed for the purpose of donation.

The Albrecht’s arguments are flawed. First, the

Albrechts confuse the definition of “protected” with the

definition of “property.” As previously explained above,

the states define “property,” “property rights,” and

“property interest.” Board of Regents of State Colleges

v. Roth, 408 U.S. at 577. Whether that “property

interest” is constitutionally “protected,” however, is a

matter of federal law. Waeschle v. Dragovic, 576 F.3d

at 544-45; see Brotherton v. Cleveland, 923 F.2d at 481-

82 (“Although the existence of an interest may be a

matter of state law, whether that interest rises to the

level of a ‘legitimate claim of entitlement’ protected by

the due process clause is determined by federal law.”).

Thus, there are two questions in determining whether

a plaintiff has a constitutionally protected property

interest sufficient to support a § 1983 claim: first, is

there a property interest, stemming from “an

independent source such as state-law rules” and

second, whether that interest, if any, “rises to the level

of a constitutionally protected property interest.”

Board of Regents of State Colleges v. Roth, 408 U.S. at

577 and Waeschile v. Dragovic, 576 F.3d at 544-45.

Obviously, if the first question is answered in the

negative, the second question is moot. In its holding in

Albrecht I, the Ohio Supreme Court found that there

is no property right to autopsy specimens removed and

retained for purposes of a lawful criminal

investigation.°

: Although the Albrecht 1] court stated that “the next of kin of a

decedent upon whom an autopsy has been performed do not have

a protected right under Ohio law in the decedent’s tissues, organs,

12a

The Ohio Supreme Court’s decision in Albrecht II

did not “overrule” Sixth Circuit precedent. Albrecht II

is a clarification of property law in the state of Ohio.

“Principles of comity require federal courts to defer to

a state’s judgment on issues of state law ... .” Israfil

v. Russell, 276 F.3d 768, 771 (6th Cir. 2001). The

district court appropriately deferred to the Ohio

Supreme Court’s interpretation of Ohio law in finding

that the Albrechts did not have a property interest in

the son’s body parts the coroner retained for

investigative purposes.

Furthermore, the argument that Albrecht IJ

impermissibly “overrules” and_ conflicts with

Brotherton is flawed. Brotherton is distinguishable

blood, or other body parts that have been removed and retained by

the coroner for forensic examination and testing,” the Court

merely answered the question using the language the district

court used in the question it submitted. Albrecht II, 118 Ohio

St.3d at 350 (emphasis added). The full language of the opinion

makes it clear that the Ohio Supreme Court was determining

whether the “state law in effect at the time of the incident gave

them a property interest in their deceased son’s body parts.” Jd.

at 351 (emphasis added)citation omitted). Furthermore, this

Court has already identified and dismissed the district court’s

misstatement in its denial of the Albrecht’s petition for

mandamus, stating,

The plaintiffs also suggest that the district court erred

by asking the Ohio Supreme Court whether there is a

“protected” interest, rather than a “property” interest.

Although the two terms generate some confusion, we are

convinced that the district court recognized that there is

a state component and a federal component to the

plaintiffs’ cause of action.

In re Albrecht, No. 07-3419, slip op. at 3 (6th Cir. May 2, 2007).

l3a

from the facts in this case, and this Court has already

ruled to that extent in Waeschile. As noted, the facts in

Waeschle are nearly identical to the facts in this case.

On this issue, this Court stated that

Brotherton and Whaley, however, are

distinguishable from the present case. The key

difference is that the brain of Waeschle’s mother

was removed and retained for study by the

Medical Examiner in furtherance of a lawful

criminal investigation. By contrast, the removal

of corneas in Brotherton and Whaley served no

investigative function whatsoever. The

distinction is important because Waeschle

might have no right under Michigan law to

possess, control, or dispose of her mother’s brain

once it is removed for legitimate forensic study.

Waeschle v. Dragovic, 576 F.3d at 546-47. The

Waeschile court stated that the plaintiff “might have

no right” to her mother’s brain because the law in

Michigan has not been clearly defined on this issue.

The Supreme Court of Ohio, however, has clearly

defined the law on this issue in Ohio. Furthermore,

this Court and the Supreme Court of Ohio agree that

Brotherton applies only in the narrow circumstance of

unauthorized removal of body parts for donations, and

should not be expanded to include claims by next of

kin for bodily tissues retained by a government official

for legitimate criminal investigations. [d.; Albrecht v.

Treon, 118 Ohio St.3d 348, 353 (2008) (Albrecht IT).

The Albrechts further argue that their position is

supported by the district court’s decision in Hainey v.

Parrott, No. 1:02-CV-733, 2005 WL 2397704 (S.D. Ohio

Sept. 28, 2005). Hainey was a class action lawsuit with

l4a

facts nearly identical to those at bar. The district court

in Hainey found that the

differences in facts likely to [sic] do not take

[that] case outside the broad holding in

Brothe,ton that there is a substantial and

protectable constitutional interest in the dead

body of a relative or loved one.

Accordingly, the Court concludes that

Plaintiffs do have a cognizable constitutional

property interest in their decedent’s body parts

which the coroner’s office violated when it

disposed of their decedents’ brains without prior

notice.

... Brotherton very broadly and very clearly

held that family members have a _ property

interest in their decedent’s body parts which is

protected by the due process clause of the

Fourteenth Amendment.

Hainey v. Parrott, No. 1:02-CV-733, 2005 WL 2397704

at *6-8 (S.D. Ohio Sept. 28, 2005). Hainey was decided

prior to the Ohio Supreme Court’s ruling on the

certified question in this case. Without the benefit of a

ruling from the Ohio Supreme Court on this issue, the

district court in Hainey utilized the precedent

available and made a prediction on Ohio law as

defined at that time. See Combs v. International Ins.

Co., 354 F.3d 568, 577 (6th Cir. 2004) (Federal courts

must make the “best prediction, even in the absence of

direct state precedent, of what the [state supreme

court] would do if it were confronted with [the]

15a

question.”). The district court in Hainey did not, and

could not, define Ohio property law. The Ohio Supreme

Court addressed the Hainey case in its opinion on the

certified question, stating, “Hainey’s expansion of

Brotherton is unsupported by Ohio law.” Albrecht IJ,

118 Ohio St.3d 348, 355 (2008). Furthermore, this

Court rejected an expansion of Brotherton in Waeschle.

Waeschle v. Dragovic, 576 F.3d at 546-47 (“Brotherton

lis] . . . distinguishable from the present case . . . the

removal of corneas in Brotherton and Whaley served no

investigative function whatsoever’).

B. Purported Retroactive Application of

Albrecht II

Finally, the Albrechts argue that because, in their

view, Brotherton is the controlling law of this case,

their rights to their son’s brain under Brotherton

vested prior to the Ohio Supreme Court’s decision in

Albrecht II and to apply Albrecht IT to this case would

be to apply it retroactively. This argument is a red

herring. As explained above, this Court does not define

Ohio property law. Brotherton did not create a

property interest in the next of kin’s deceased

relative’s corneas, but, instead, interpreted that right

as it already existed pursuant to Ohio’s Uniform

Anatomical Gift Act. Brotherton is distinguishable

from this case and does not control the outcome,

therefore, Albrecht IT did not impact the law as set

forth in Brotherton. Thus, the question of whether

Albrecht II should be applied retrospectively or

16a

prospectively is inapposite here, because Albrecht II

did not change Ohio law.’ As the district court stated,

Albrecht [I7| did not contradict Brotherton or

create new law. Rather, the Supreme Court of

Ohio illuminated the fact that both before and

after Brotherton, Ohio law did not grant the

entitlement that Plaintiffs claim. Thus, the

Court need not undertake an analysis of

whether the decision from the Ohio court is

entitled to retroactive effect.

Federal law is clear that the states define property

rights in their respective jurisdictions. See Craft v.

U.S. Through C.I.R., 140 F.3d 638, 645 (6th Cir. 1998)

(Ryan, J., concurring) (“state property law determines

which rights, in the bundle of rights we call ‘property,’

a person may exercise.”). The Ohio Supreme Court

explicitly delineated the lack of property rights in this

case in Albrecht II. That Court held that next of kin

have no right to autopsy specimens removed and

retained by the coroner, in furtherance of a criminal

investigation. Although there is no dispute as to the

facts as the Albrechts present them, they had no

* Both briefs also mention R.C. § 313.123, which states that

“retained tissues, organs, blood, other bodily fluids, gases, or any

other specimens from an autopsy are medical waste and shall be

disposed of in accordance with applicable federal and state laws.”

R.C. § 313.123. This statute was enacted after the incidents which

form the basis for this lawsuit, and, thus, is not controlling on the

outcome in this case. Patel v. Gonzales, 432 F.3d 685, 690 (6th Cir.

2005) (“courts ordinarily do not apply statutes retroactively unless

a statute evidences congressional intent to apply retroactively . . .

where a statute is silent as to the scope of its application, the

statute should not be applied retroactively”) (citations omitted).

17a

property interest in their son’s brain, thus, they cannot

support the first element of a due process clause claim.

Their claim fails as a matter of law. “[I]f state actors

... do not infringe on the life, liberty, or property of

the plaintiffs, there can be no due process violation.”

Whaley v. County of Tuscola, 58 F.3d 1111, 1113 (6th

Cir. 1995). Here, the Albrechts had no property rights

on which the state could infringe. As a result, the

district court properly granted judgment on the

pleadings in favor of the defendants.

IV. Conclusion

For the foregoing reasons, the district court’s grant

of judgment on the pleadings in favor of Defendants is

AFFIRMED.

l&8a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 09-3703

[Filed August 24, 2010]

MARK ALBRECHT; DIANE ALBRECHT,

Both individually and on behalf of others

similarly situated,

Plaintiffs - Appellants,

)

BRIAN TREON, M.D., Individually and in )

his official capacity as Coroner of Clermont )

County, Ohio, and on behalf of others )

similarly situated; BOARD OF COUNTY )

COMMISSIONERS OF CLERMONT COUNTY, )

OHIO, for itself and on behalf of others )

similarly situated; MARY WALKER, in her

capacity as Commissioner of Clermont County, )

Ohio, and on behalf of others similarly situated; )

BOB PROUD, in his capacity as Commissioner )

of Clermont County, Ohio, and on behalf of )

others similarly situated; SCOTT CROSWELL, )

in his capacity as Commissioner of Clermont )

County, Ohio, and on behalf of others similarly )

situated, )

Defendants - Appellees. )

)

Before: GUY and GRIFFIN, Circuit Judges; HOOD,

Senior District Judge.

19a

JUDGMENT

On Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati

THIS CAUSE was heard on the record from the

district court and was argued by counsel. IN

CONSIDERATION WHEREOF, it is ORDERED that

the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

/sfLeonard Green _

Leonard Green, Clerk

20a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 1:06cv274

[Filed May 15, 2009]

MARK ALBRECHT, ect al.,

Plaintiffs,

BRIAN TREON, M_D., ct al.,

Defendants

CHIEF JUDGE SUSAN J. DLOTT

ORDER LIFTING STAY, DENYING

MOTION FOR ORAL ARGUMENT,

AND GRANTING MOTIONS FOR

JUDGMENT ON THE PLEADINGS

Before the Court is the Motion for Judgment on the

Pleadings of Defendants Clermont County Coroner

and the Board of Commissioners of Clermont County

(doc. 93) and the like motion of interested party Lucas

County Coroner (doc. 95). Plaintiffs opposed the

2la

motions (doc. 100), and the Clermont County

Defendants and other interested party county coroners

filed replies in support of Defendants’ motion (docs.

104-106). Plaintiffs filed a Request for Oral Argument

on Defendants’ motions (doc. 107). For the reasons that

follow, Plaintiffs’ Request for Oral Argument is

DENIED and Defendants’ Motions for Judgment on

the Pleadings are GRANTED.

I. BACKGROUND

The captioned case is again before this Court

having returned from a circuitous course. Plaintiffs

filed the lawsuit in this District Court on May 8, 2006,

claiming that they were denied due process of law

when the county coroner removed and destroyed their

son’s brain after an autopsy without giving them

notice and an opportunity to retrieve the brain for

burial. Plaintiffs additionally asserted pendent state

common-law tort claims against the Defendants.

The Due Process Clause of the United States

Constitution prohibits states from “deprivling] any

person of life, liberty, or property, without due process

of law.” U.S. Const. Amend. XIV, § 1. “Although the

underlying substantive interest is created by ‘an

independent source such as _ state law,’ federal

constitutional law determines whether that interest

rises to the level of a ‘legitimate claim of entitlement’

protected by the Due Process Clause.” Memphis Light,

Gas and Water Div. v. Craft, 436 U.S. 1, 9 (1978)

(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972)). In other words, “|rjlesolution of the federal

issue begins... with a determination of what it is that

state law provides.” Town of Castle Rock v. Gonzales,

545 U.S. 748, 757 (2005).

22a

In March 2007, this Court determined that it was

unclear whether Ohio law created for the next of kin of

a decedent upon whom an autopsy had been performed

an interest in the decedent’s tissues and organs

removed and retained by the coroner for forensic

examination and testing. (Doc. 87 at 7.) The Court

stayed the case in the District Court and certified the

following question of state law for review to the

Supreme Court of Ohio:

Whether the next of kin of a decedent, upon

whom an autopsy has been performed, have a

protected right under Ohio law in the decedent’s

tissues, organs, blood or other body parts that

have been removed and retained by the coroner

for forensic examination and testing.

(Doc. 89.)

Plaintiffs then filed with the Sixth Circuit Court of

Appeals a petition for writ of mandamus. In that

petition, Plaintiffs argued that the certified question

had already been decided in Brotherton v. Cleveland,

923 F.2d 477 (6th Cir. 1991). They sought a writ of

mandamus directing this Court to withdraw the

certification or a writ of prohibition directing this

Court not to consider any answer that the Ohio court

might offer. The Court of Appeals denied Plaintiffs

petition, noting that “the plaintiffs invoke a holding in

a decision issued in another case on a distinguishable

set of facts. Since Brotherton was decided, changes in

Ohio law suggest another reading may be possible.” Jn

re Albrecht, No. 07-3419, slip op. at 3 (6th Cir. May 2,

2007).

23a

The matter then proceeded to the Supreme Court

of Ohio, and that court agreed to answer the certified

question. Following oral argument by the parties, the

Supreme Court of Ohio answered the certified question

in the negative, holding as follows:

The next of kin of a decedent upon whom an

autopsy has been performed do not have a

protected right under Ohio law in the decedent’s

tissues, Organs, blood, or other body parts that

have been removed and retained by the coroner

for forensic examination and testing.

Albrecht v. Treon, 118 Ohio St. 3d 348, 889 N.E.2d 120,

syllabus (2008). In its decision, the court first noted

that Plaintiffs had argued in the mandamus action

that the question already had been decided in

Brotherton. In response to this argument, the Ohio

court explained that Brotherton involved Ohio Revised

Code Chapter 2180, the Anatomical Gift Act, as it

related to the removal of corneas from autopsy subjects

for use by eye banks. “Thus, Brotherton’s specific

holding regarding removal of corneas for purposes

unrelated to the autopsy is not relevant in this case.”

Id. at 352. Further, the court explained that the two

cases relied upon in Brotherton, Carney v. Knollwood

Cemetery Assn., 33 Ohio App. 3d 31, 514 N.E.2d 430

(1986) (concerning the unauthorized disturbance of a

body) and Everman v. Davis, 54 Ohio App. 3d 119, 561

N.E.2d 547 (1989) (concerning the right to bury a

decedent), also were not relevant to the issue under

consideration. The court also discussed Hainey uv.

Parrott, a factually similar case in which the district

court concluded that the plaintiffs had a “cognizable

constitutionai property interest in their decedent’s

body parts which the coroner’s office violated when it

24a

disposed of their decedent’s brains without prior

notice.” No. 1:02-CV-733, 2005 WL 2397704, at *6

(S.D. Ohio Sept. 28, 2005). The Ohio court stated that

the federal district court’s expansion of the holding of

Brotherton “to apply to situations in which the coroner

removed and retained organs for additional forensic

examination and testing, a procedure that the coroner

is clearly authorized by statute to do,” was

unsupported by Ohio law. Albrecht, 118 Ohio St. 3d at

355.

Having determined that Brotherton did not answer

the certified question, the Supreme Court of Ohio

turned to the Ohio statutes. The court first observed

that after the federal district court’s decision in

Hainey, the Ohio legislature enacted Ohio Revised

Code § 313.123, effective August 2006, which expressly

governs autopsy specimens, classifying them as

medical waste and authorizing the coroner to dispose

of them as such. However, the court noted that “[elven

before R.C. 313.123 was enacted, a deceased’s next of

kin had no protected right in the autopsy specimens

pursuant to Ohio statutes.” Albrecht, 118 Ohio St. 3d

at 355.

Referring to Ohio Revised Code § 313.131(B), which

authorizes coroners to perform an autopsy when the

coroner believes an autopsy is necessary, the court

noted that “[a] coroner’s forensic examination is a

classic function of the police power of the state.” The

court then explained the balance that exists between

the rights of a decedent’s next of kin and the power of

the state. Ohio Revised Code § 313.14 gives the next of

kin the right to disposition of the body of the deceased

person. “However, pursuant to R.C. 313.15, ‘[a]ll dead

bodies in the custody of the coroner shall be held until

25a

such time as the coroner, after consultation with [state

officials], has decided that it is no longer necessary to

hold such body to enable him to decide on a diagnosis

giving reasonable and true cause of death, or to decide

that such body is no longer necessary to assist any of

such officials in his duties.” In addition, the coroner

has no obligation to obtain consent from the next of kin

of a decedent to perform an autopsy, and the coroner’s

right to perform an autopsy is paramount to the ability

of the decedent or next of kin to make a gift of a body

part. Albrecht, 118 Ohio St. 3d at 356-57 (citing Ohio

Rev. Code §§ 2108.52 and 313.13(A)). Guided by these

statutes, the court determined that “while R.C. 313.14

gives next of kin a right to disposition of the body, that

right does not arise until after the coroner has

performed his duties and does not include forensic

specimens that were retained by a coroner for forensic

examination and testing.” Jd. at 357.

Following its examination of the Ohio statutes, the

court went on to note that while it had not previously

addressed the issue, several lower Ohio courts, in

cases decided prior to Brotherton, held that “[al dead

body is not property.” Jd. (citing Hadsell v. Hadsell, 7

Ohio C.C. 196, 1893 WL 942, at *3 (Allen Cir. Ct.

1893); Hayhurst v. Hayhurst, 4 Ohio Law Abs. 375,

1926 WL 2487 (Hamilton C.P. 1926)). The court then

reached the following conclusion:

{Nothing in the United States Constitution, the

Ohio Constitution, Ohio statutes, or common

law establish a protected right in autopsy

specimens in Ohio. R.C. 313.14 simply clarifies

whom the coroner should contact to make

funeral arrangements. The interest that Ohio

statutes at issue here give the next of kin in an

26a

autopsied decedent’s body is to inter or cromate

the body after the autopsy has been performed.

Our decision today addresses only autopsy

specimens and not body parts or fluids that the

coroner or the examining individual does not

consider necessary to be examined, tested, or

retained in the autopsy.

Id. at 358. The case is once again before this Court for

resolution. Defendants argue that the Supreme Court

of Ohio’s answer to the certified question defeats

Plaintiffs’ federal claims as a matter of law.

IT. LEGAL STANDARD

“For purposes of a motion for judgment on the

pleadings, all well-pleaded material allegations of the

pleadings of the opposing party must be taken as true,

and the motion may be granted only if the moving

party is nevertheless clearly entitled to judgment.”

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,

581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480

(6th Cir.1973)). “A Rule 12(c) motion ‘is granted when

no material issue of fact exists and the party making

the motion is entitled to judgment as a matter of law.”

Id. (quoting Paskvan v. City of Cleveland Civil Serv.

Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

lt. ANALYSIS

Plaintiffs brought this action pursuant to 42 U.S.C.

§ 1983 alleging that Defendants had violated their

constitutional rights as established by the Sixth

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

Cir. 1991), in which, according to Plaintiffs, the court

27a

“held that family members do have a property interest

in the body of their dead loved one which is protected

by the Constitution and is enforceable pursuant to 28

US.C. Section 1983.” (Doc. 1 J 45.)

Brotherton concerned a coroner’s removal of a

deceased man’s corneas for use as anatomical gifts

without the widow’s or her children’s consent. The case

involved Qhio’s Anatomical Gift Act, specifically,

Revised Code § 2108.60(B), which permits a coroner to

remove the corneas of autopsy subjects without

obtaining the consent of a family member, provided

that the coroner has no knowledge of an objection by

the decedent or the next of kin. The widow had voiced

objection at the hospital when asked if she wanted to

donate her husband’s corneas. However, the hospital

did not communicate the wishes of the widow to the

coroner, and the coroner’s office did not inquire as to

whether there was any objection. Brotherton, 923 F.2d

at 478.

To the contrary, this case involves the coroner’s

retention and disposal of an autopsy specimen.

Plaintiffs do not dispute that the coroner appropriately

performed the autopsy, and they do not allege that the

coroner mishandled or in any way abused the body.

Thus, this case is factually distinct from Brotherton

and does not implicate the statute on which the

Brotherton court relied to reach its holding that the

“aggregate of rights granted by the state of Ohio to

Deborah Brotherton rises to the level of a ‘legitimate

claim of entitlement’ in Steven Brotherton’s body,

including his corneas, protected by the due process

clause of the fourteenth amendment.” Jd. at 482. The

Sixth Circuit also recognized that Brotherton is

28a

distinguishable from the instant case. Jn re Albrecht,

No. 07-3419, slip op. at 3 (6th Cir. May 2, 2007).

Because resolution of Plaintiffs’ claim depends on

what Ohio law provides with respect to a next of kin’s

rights in autopsy specimens, and there was no binding

law on point, this Court certified the question of state

law to Ohio’s high court. That court answered the

question in the negative. “Principles of comity require

federal courts to defer to a state’s judgment on issues

of state law.” Israfil v. Russell, 276 F.3d 768, 771 (6th

Cir. 2001). Because Ohio law does not give the next of

kin of a decedent upon whom an autopsy has been

performed a protected right in the decedent’s tissues,

organs, blood or other body parts that have been

removed and retained by the coroner for forensic

examination and testing, Plaintiffs’ action brought

pursuant to 42 U.S.C. § 1983 fails as a matter of law.

Plaintiffs seek to avoid this result by arguing that

the Supreme Court of Ohio’s holding does not apply to

this case because the decision in Albrecht cannot

“overrule” the Sixth Circuit’s decision in Bretherton.

According to Plaintiffs, Brotherton “held that the next-

of-kin did have a protected interest under state law to

the post-autopsy disposition of body parts of their

loved ones.” (Doc. 100 at 4 (citing Brotherton, 923 F.2d

at 481-82). They assert that this holding was the law

of the circuit at the time their son’s autopsy was

performed, and that any decision by the Supreme

Court of Ohio cannot work retroactively to take away

the rights that Brotherton established.

Contrary to Plaintiffs assertion, Brotherton did not

hold that next of kin have a protected interest under

state law to the post-autopsy disposition of body parts.

29a

Brotherton held, on distinguishable facts, that “the

aggregate of rights granted by the state of Ohio to

Deborah Brotherton rises to the level of a ‘legitimate

claim of entitlement’ in Steven Brotherton’s body,

including his corneas.” 923 F.2d at 482. The question

of whether Ohio law gives next of kin a right in a

decedent’s tissues, organs, blood, or other body parts

that have been removed and retained by the coroner

for forensic testing had not been considered by the

Sixth Circuit or by any Ohio state court prior to the

Albrecht decision.’ Brotherton did not establish any

rights for next of kin with respect to body parts that

have been removed and retained by the coroner for

forensic examination and testing and thus did not

establish the law applicable to the circumstances

' The United States District Court for the Southern District of

Ohio did consider this issue in Hainey v. Parrott, No. 1:02-CV-733,

2005 WL 2397704 (S.D. Ohio Sept. 28, 2005). The court

acknowledged that the “potentially dispositive threshold issue

[was] whether Plaintiffs [had] any constitutionally cognizable

interest in the remains of their decedents.” Jd. at *3.

The Hainey court found that Brotherton was the primary case

on point and examined “whether Brotherton [was] distinguishable

from the facts of this case in any meaningful way.” Jd. at *5. The

court noted that the coroner’s decision to retain the decedeni’s

brain was forensically or scientifically necessary, whereas the

coroner’s harvesting of Brotherton’s corneas “amounted to state-

sanctioned grave robbing.” Jd. Nonetheless, the Hainey court

concluded that “these differences in facts likely do not take this

case outside the broad holding in Brotherton that there is a

substantial and protectable constitutional interest in the dead

body of a relative or loved one.” /d.

When presented with the identical question, this Court

suspected that the fact differences likely would take the case

outside the broad holding in Brotherton. Thus, the Court certified

the question to the Supreme Court of Ohio for a determination of

wnat Ohio law provided.

30a

presented in this case. Further, Albrecht did not

contradict Brotherton or create new law. Rather, the

Supreme Court of Ohio ittluminated the fact that both

before and after Brotherton, Ohio law did not grant the

entitlement that Plaintiffs claim. Thus, the Court need

not undertake an analysis of whether the decision

from the Ohio court is entitled to retroactive effect.

Finally, Defendants ask this Court to refuse to

exercise its supplemental jurisdiction over the residual]

state law claims. Under 28 U.S.C. § 1367(c)(3), a

district court may decline to exercise supplemental

jurisdiction over a claim if “the district court has

dismissed all claims over which it has original

jurisdiction.” “Generally, ‘if the federal claims are

dismissed before trial, ... the state claims should be

dismissed as well.” Taylor v. First of America Bank-

Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992) (quoting

United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966)). In this case, neither judicial economy nor

fairness weigh in favor of this Court retaining

jurisdiction over Plaintiffs’ remaining state law tort

claims.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motions for

Judgment on the Pleadings (docs. 93 and 95) are

GRANTED. The Supreme Court of Ohio decided in

Albrecht v. Treon that next of kin did not have any

constitutionally cognizable interest in the autopsy

specimens of the decedent that were removed and

retained by the coroner for forensic examination and

testing. Defendants therefore are entitled to judgment

on Plaintiffs’ federal law claims. The Court declines to

exercise supplemental jurisdiction over Plaintiffs’

sla

remaining state law claims. Oral argument is not

essential to the resolution of these issues, and

Plaintiffs’ Request for Oral Argument (doc. 107) is

DENIED.

IT IS SO ORDERED.

s/Susan J. Dlott.

Chief Judge Susan J. Dlott

United States District Court

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 1:06cv274

[Filed May 15, 2009]

Mark Albrecht, et al.,

Plaintiff(s)

Brian Treon, et al.,

Defendant(s)

)

}

)

Chief Judge Susan J. Dlott

JUDGMENT IN A CIVIL CASE

Decision by Court: This action came to trial or

hearing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

... Defendants’ motions for judgment on the pleadings

(docs. 93 and 95) are GRANTED. The Court declines to

33a

exercise supplemental jurisdiction over Plaintiffs

remaining state law claims. Oral argument is not

essential to the resolution of these issues, and

Plaintiffs request for oral argument (doc. 107) is

DENIED.

5/15/09

JAMES BONINI, CLERK

S/William Miller_

Deputy Clerk

Pursuant to S. D. Ohio Civ. R. 79.2(a) and (b), all

models, diagrams, depositions, photographs, x-rays

and other exhibits and materials filed or offered in

evidence shall be withdrawn by counsel without

further Order within six (6) months after final

termination of the action. All materials not withdrawn

shall be disposed of by the Clerk as waste

34a

APPENDIX D

THE SUPREME COURT OF OHIO

Case No. 2007-0507

[Filed June 5, 2008]

Mark Albrecht et al.

¥.

Brian Treon, M.D., et al.

Nee eee ee”

ENTRY

This cause came before the Court on the

certification of a state law question from the United

States District Court for the Southern District of Ohio,

Western Division. Upon review of the preliminary

memoranda, the Court determined that it would

answer the certified question.

The certified question is answered in the negative.

The next of kin of a decedent, upon whom an autopsy

has been performed, do not have a protected right

under Ohio law in the decedent’s tissues, organs,

blood, or other body parts that have been removed and

retained by the coroner for forensic examination and

testing.

35a

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

36a

[Cite as Albrecht v. Treon, 118 Ohio St.3d 348,

2008-Ohio-2617.]

THE SUPREME COURT OF OHIO

Case No. 2007-0507

[Filed June 5, 2008]

Mark Albrecht et al. )

)

Vv. )

)

Brian Treon, M.D., et al. )

)

OPINION

The next of kin of a decedent upon whom an autopsy

has been performed do not have a protected right

under Ohio law in the decedent’s tissues, organs,

blood, or other body parts that have been removed

and retained by the coroner for forensic examination

and testing.

(No. 2007-0507 — Submitted January 23, 2008 —

Decided June 5, 2008.)

ON ORDER from the United States District Court for

the Southern District of Ohio, Western Division,

Certifying State Law Question, NO. 1:06cv274.

SYLLABUS OF THE COURT

The next of kin of a decedent upon whom an autopsy

has been performed do not have a protected right

under Ohio law in the decedent’s tissues, organs,

blood, or other body parts that have been removed

and retained by the coroner for forensic

examination and testing.

LUNDBERG STRATTON, J.

I. Introduction

Background

{fl 1} This case involves the balancing of delicate

issues involving a family’s right to properly bury their

deceased loved one in a condition that is as complete

as possible against the state’s right to conduct an

autopsy where appropriate in a thorough and timely

manner. Today we must determine whether the next

of kin of a decedent upon whom an autopsy has been

performed have a protected right under Ohio law in

the decedent’s tissues, organs, blood, or other body

parts that have been removed and retained by the

coroner for forensic examination and testing.

{91 2} The respondents, Mark and Diane Albrecht,

argue that the coroner should be required to give

notice to the deceased’s next of kin’ of the coroner’s

intent to retain certain forensic specimens for several

1 a Be oe

We use “next of kin” to mean any one or more persons entitled

to claim a decedent's body from the coroner’s office.

38a

weeks to complete the autopsy, and allow the next of

kin to decide whether they want to receive the

specimens when the coroner is through with them.

This case could have implications far beyond simply

the parties involved, as is evidenced by the number of

amicus briefs that have been filed, including briefs by

the National Association of Medical Examiners, the

County Commissioners’ Association of Ohio, the

Buckeye State Sheriffs’ Association, the Ohio

Association of Chiefs of Police, the Ohic Prosecuting

Attorneys Association, the Ohio Society of

Pathologists, the Ohio State Coroners Association, the

Ohio State Medical Association, the Ohio Attorney

General’s Office, 65 counties that are affected by this

ruling, and two funeral homes. In oral argument it

was argued that our answer may also affect other

aspects of the medical profession, such as when

surgeons remove organs and body tissue during

surgery. However, many of the arguments raised by

the parties and amici relate to public-policy issues, not

legal issues.

{fl 3} Coroners have conducted autopsies in Ohio

for several decades. Autopsies serve an important

public function relating to health, science, and

criminal investigation. However, we must take the law

of Ohio as we find it and leave the crafting of new

solutions to the General Assembly. Courts are not the

proper forum for regulating the practices, standards,

customs, policies, and procedures of autopsies in Ohio,

as long as they pass constitutional muster. Therefore,

we must look to the law to determine whether the next

of kin have a protected right in the autopsy specimens

of their deceased after an autopsy is complete.

39a

Facts

{ff 4} Respondents initiated the underlying lawsuit

against the coroner of Clermont County, Ohio, Dr.

Brian Treon, the Board of County Commissioners, and

the commissioners individually. After the death of the

Albrechts’ son, Christopher Albrecht, in accordance

with proper forensic practice and statutory obligations,

the Hamilton County Coroner retained their son’s

brain for further examination to determine the cause

of death. Upon review of the autopsy report, the

Albrechts discovered that their son’s brain had been

retained by the coroner’s office when it released the

body to them: and had been disposed of after

completion of the autopsy, thereby prompting them to

file the underlying cause of action for damages.

{fl 5} The underlying case was filed in the United

States District Court for the Southern District of Ohio

and is now a putative class-action suit against all

county coroners and/or medical examiners in the state

of Ohio who, prior to a recent change in the law, had

removed, retained, and disposed of body parts without

prior notice to next of kin, and the county

commissioners of those counties. Eighty-seven counties

(all Ohio counties except Hamilton, which has already

settled a similar suit) are implicated in the suit.

{71 6} On March 16, 2007, Judge Susan J. Dlott of

the United States District Court for the Southern

District of Ohio, Western Division, certified a question

of state law for review to this court pursuant to

S.Ct.Prac.R. XVIII. On June 11, 2007, this court

agreed to answer the following question: “Whether the

next of kin of a decedent, upon whom an autopsy has

been performed, have a protected right under Ohio law

40a

in the decedent’s tissues, organs, blood or other body

parts that have been removed and retained by the

coroner for forensic examination and testing.”

{fl 7} Respondents do not assert that they did not

receive the body of their son for burial, nor do they

contend that petitioners mishandled or in any way

abused the Sody. They allege, instead, that once the

autopsy was completed, they should have been given

the opportunity to retrieve the brain for burial.

Respondents argue that petitioners’ failure to give

them that opportunity violated their due-process

rights.

{ji 8} For the following reasons, we answer the

certified question in the negative and hold that the

next of kin of a decedent upon whom an autopsy has

been performed do not have a protected right under

Ohio law in the decedent’s tissues, organs, blood, or

other body parts that have been removed and retained

by the coroner for forensic examination and testing.

li. Autopsy Process and Protocol

{f_ 9) An autopsy includes, by definition, the

removal and sometimes the retention of specimens

from the human body:

{f1 10} “‘|AJutopsy’ means the external and internal

examination of the body of a deceased person,

including, but not limited to, gross visual inspection

and dissection of the body and its internal organs,

photographic or narrative documentation of findings,

microscopic, radiological, toxicological, chemical, or

other laboratory analyses performed in the discretion

of the examining individual upon tissues, organs,

4la

blood, other bodily fluids, gases, or any other

specimens and the retention for diagnostic and

documentary purposes of tissues, organs, blood, other

bodily fluids, gases, or any other specimens as the

examining individual considers necessary to establish

and defend against challenges to the cause and

manner of death of the deceased person.” (Emphasis

added.) R.C. 313.123(A)(1).

{jl 11} The brain is a common site of diseases that

are responsible for death. Sheaff, Michael T. &

Hopster, Deborah J., Post Mortem Technique

Handbook (2d Ed.2005) 282. Also, injuries to and

abnormalities of the brain, such as_ subdural

hematoma (often caused by the head’s hitting a hard

surface), inflammation of the brain, stroke, and

tumors, may not be obvious without dissecting the

brain. Wagner, Scott A., The Color Atlas of the

Autopsy (2004) 203. Therefore, all autopsies performed

under a coroner’s jurisdiction require the examination

of the brain. Id.

{fi 12) During an autopsy, after the brain is

removed from the skull, the medical professional uses

his or her discretion in determining whether to dissect

the brain in its fresh state (without soaking it in any

solution to promote hardening) or in a fixed state (after

it has soaked in a hardening solution). Post Mortem

Technique Handbook 285.

{fl 13} Fixation of a brain is accomplished by

suspending the brain upside down in a large container

of ten percent formol saline (formalin) for at least four

to six weeks. Post Mortem Technique Handbook 285.

Although the dissections of fixed and fresh brains are

identical, fixation of the brain prior to dissection

42a

provides for a superior neuropathological examination.

Id. Moreover, in cases in which there have been

contusions or other injuries to the head (such as falling

on a hard surface), inflammation (meningitis),

fractures, or stroke, in cases in which there is reason

to believe there are unexpected tumors or old injuries,

or in cases involving sudden unexpected deaths of

children, fixation of the brain prior to dissection

provides a far better neuropathological examination.

Id.; The Color Atlas of the Autopsy 2, 203. Thus, due to

the length of time required for proper fixation of the

brain, the coroner often returns the body without the

brain and later destroys the brain after the

examination is completed.

III. Analysis

{fl 14} Respondents argue that they were denied

due process of law when the coroner destroyed their

deceased son’s brain after autopsy without giving them

the opportunity to retrieve the brain for burial. For

respondents to be successful, they must show that

state law in effect at the time of the incident gave

them a property interest in their deceased son’s body

parts. Board of Regents of State Colleges v. Roth

(1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d

548. See also State ex rel. Horvath v. State Teachers

Retirement Bd. (1998), 83 Ohio St.3d 67, 73, 697

N.E.2d 644. Therefore, we must determine whether

the next of kin of a decedent have a protected right in

autopsy specimens under Ohio law.

Brotherton and Its Progeny

{fl 15} In a related mandamus action before the

Sixth Circuit Court of Appeals, the court noted that

43a

respondents argued that the court had already decided

the question in Brotherton v. Cleveland (C.A.6, 1991),

923 F.2d 477. In Brotherton, a widow brought a

civil-rights action regarding a coroner’s alleged

violation of her equal-protection and due-process rights

in permitting removal of her deceased husband’s

corneas for use cs anatomical gifts without the widow’s

or her children’s consent. That case involved R.C.

Chapter 2108, Ohio’s Anatomical Gift Act, and

specifically R.C. 2108.60(B), which permits a coroner

to remove the corneas of autopsy subjects without

obtaining the consent of a family member, provided

that the coroner has no knowledge of an objection by

the decedent or the next of kin. The widow had voiced

objection at the hospital when asked if she wanted to

donate her husband’s corneas. However, because her

husband’s death was considered a possible suicide, his

body was taken to the coroner’s office for an autopsy.

The hospital did not communicate the wishes of the

widow to the coroner, and the coroner’s office did not

inquire as to whether there was any objection.

Brotherton, 923 F.2d at 478.

{7 16} The Brotherton court concluded that a

majority of the courts that had been confronted with

the issue whether a person can have a property

interest in a dead body had found that a property right

of some kind did exist and that some of those courts

referred to the right as a “quasi-property right.” Id. at

480. However, the court noted that two Ohio appellate

courts had not characterized the right as a property

right. Id. One court refused to characterize it that way.

The court cited Carney v. Knollwood Cemetery Assn.

(1986), 33 Ohio App.3d 31, 35-37, 514 N.E.2d 430, and

Everman v. Davis (1989), 54 Ohio App.3d 119, 561

N.E.2d 547.

44a

{f 17} The Brotherton court, in examining R.C.

2108.02(B), which governs who may make anatomical

gifts of a decedent’s body parts, concluded that

“lallthough extremely regulated, in sum, these rights

[possessory right and the right to have the body

remain undisturbed] form a substantial interest in the

dead body, regardless of Ohio’s classification of that

interest.” Brotherton, 923 F.2d at 482. Thus, the court

held that the “aggregate of rights granted by the state

of Ohio to Deborah Brotherton rises to the level of a

‘legitimate claim ofentitlement’ in Steven Brotherton’s

body, including his corneas, protected by the due

process clause of the fourteenth amendment.” Id.

{fl 18} The dissent in Brotherton charged that the

majority was “wrong in its holding that the procedural

requisites for dealing with non-property can rise to

become property and be protected by the fourteenth

amendment. Nor can the grant of procedures to

enhance the health and well-being of others in society

and the imposition of duties on persons (coroners or

hospitals) grant property rights protected by the

fourteenth amendment in favor of the decedent’s

relatives.” Id., 923 F.2d at 484.

{fl 19} Brotherton, however, involved R.C. Chapter

2108, the Anatomical Gift Act, as it related to removal

of corneas from autopsy subjects for use by eye banks.

Thus, Brotherton’s specific holding regarding removal

of corneas for purposes unrelated to the autopsy is not

relevant in this case. The two cases relied upon in

Brotherton, Carney and Everman, also are not relevant

to our inquiry today.

{I 20} Carney involved a claim for the mishandling

of a dead body, which clearly distinguishes it from the

45a

case at bar. The Eighth District Court of Appeals

rejected the theory that a surviving custodian has

quasi-property rights in the body of the deceased and

noted a trend away from this “quasi-property fiction.”

Carney, 33 Ohio App.3d at 35-36, 514 N.E.2d 430.

{Jl 21} In Everman, the spouse of a motorist killed

in an automobile accide..t brought an action against

the county coroner and others, alleging emotional

distress resulting from the coroner’s decision to

perform an allegedly unnecessary autopsy. Everman,

54 Ohio App.3d at 120, 561 N.E.2d 547. The Second

District rejected the theory that a husband’s right to

possession of his deceased wife’s body for purposes of

preparation, mourning, and burial is protected by the

Fourth Amendment to the United States Constitution,

which provides that persons, houses, and effects are

protected against unreasonable search and seizure. Id.

at 122. The court concluded that nothing in the

language of the Fourth Amendment suggests that the

body of the former person is part of the “effects” of

anyone else. Id.

{fl 22} The case at bar does not involve the

Anatomical Gift Act (as Brotherton did), the denial of

a right to bury a decedent (as Everman did), or the

unauthorized disturbance of a body (as Carney did).

{fl 23} The Sixth Circuit’s decision in Montgomery

v. Clinton Cty. (C.A.6, 1991), 940 F.2d 661 (Table),

however, involved an autopsy to which the decedent’s

next of kin objected. In Montgomery, the plaintiffs filed

suit against a coroner who had performed an autopsy

on their deceased son without their consent, but within

the scope of his statutory duties. In denying the

plaintiffs’ due-process claim, the Sixth Circuit held:

46a

“There is no merit in the procedural due process claim

founded on the state statutory requirement that the

medical examiner make a diligent effort to notify the

next of kin as to the decision to perform an autopsy.

Whatever the nature of the right created by the

statute there is an insufficient liberty or property

interest under this statute to create a valid procedural

due process claim. Although the notice requirement in

the state statute does not appear to be discretionary,

it does not purport to establish a right to control the

dead body. We would distinguish this case from

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

In Brotherton, the plaintiff had an ‘aggregate of rights

granted by the state of Ohio’ to control disposition of

the body, including the corneas, and thus had a right

to refuse removal of corneas for purposes of a cornea

transplant. Id. at 482.” Montgomery at *2. Although it

involved Michigan law, the Sixth Circuit found that

the Michigan statute did not create a _ sufficient

interest to support a due-process claim for the

coroner’s failure to give notice before the autopsy.

{fl 24} In 2005, in Hainey v. Parrott (Sept. 28,

2005), S.D.Ohio No. 1:02-CV-733, 2005 WL 2397704,

the United States District Court for the Southern

District of Ohio examined a case with facts similar to

those in the case at bar. In Hainey, the named

plaintiffs and the class members they represented each

had a family member who had died under

circumstances in which the Hamilton County coroner

decided pursuant to his statutory grant of authority

and discretion that an autopsy was necessary to

determine the cause of death and that the brain would

need to be examined after being fixed, a process that,

as previously mentioned, takes several weeks. The

coroner’s office did not notify the plaintiffs, either prior

47Va

to or at the time of the release of the bodies, that it

would be retaining the brains of the decedents for

further forensic examination. Nor did the coroner’s

office notify the plaintiffs when examination of their

decedent’s brain was complete so that they could, if

they chose, recover the remains to be interred with the

other remains of the decedent or for other disposition.

Id. at *1.

{jl 25} The plaintiffs argued that the coroner

should have advised them that it was necessary to

retain the brains of their decedents for purposes of

performing the autopsy and that upon completion of

the autopsy, the coroner should have notified them so

that they could have retrieved the remains and

interred them. The plaintiffs also argued that if they

had been given prior notice, they could have decided to

delay the recovery of their decedents’ remains until the

autopsy was finished, so that the remains could be

restored as completely as possible before interment

Plaintiffs claimed that the coroner’s policy of not giving

them any notice regarding the retention and disposal

of their decedents’ brains deprived them of their

property interest in their decedents’ remains without

due process of law. Id. at *4.

{fi 26} The district court concluded that the

plaintiffs had a “cognizable constitutional property

interest in their decedent’s body parts which the

coroner’s office violated when it disposed of their

decedents’ brains without prior notice.” Id. at *6. The

court concluded that “la]lthough it is a given that of

necessity tissue and fluids will be destroyed [as] a

result of performing the autopsy, the right to take

possession of what remains of the deceased’s body

following the completion of the autopsy in no way

48a

conflicts with the coroner’s admittedly superior prior

interest to take custody of the body and complete what

procedures are necessary to determine the cause of

death.” Id. The court further noted that in practical

terms, this may mean that when an examination of the

brain is required to determine the cause of death, the

coroner will simply exercise his statutory authority

under R.C. 313.15 to retain the entire body for the

several weeks it takes to complete fixation and

analysis of the brain. “Whether this [is] a desirable

outcome of this litigation is a different question, but in

light of state law, such a decision or policy seemingly

would not be an infringement on any property

interests of the next-of-kin.” Id.

{fl 27} Brotherton, 923 F.2d 477, upon which the

district court in Hainey relied, involved the coroner’s

retaining corneas to give to a third party, a practice

prohibited by state statute when the coroner is aware

that an objection has been made by the decedent prior

to death or by the decedent’s next of kin. The Hainey

court expanded the holding of Brotherton to apply to

situations in which the coroner removed and retained

organs for additional forensic examination and testing,

a procedure that the coroner is clearly authorized by

statute to do. Hainey’s expansion of Brotherton is

unsupported by Ohio law.

{jl 28} “Principles of comity require federal courts

to defer to a state’s judgment on issues of state law

* * *” TIsrafil v. Russell (C.A.6, 2001), 276 F.3d 768,

771. Moreover, the Sixth Circuit noted in its related

mandamus action that the respondents were invoking

a holding (Brotherton) in a decision issued in another

case on a distinguishable set of facts. Further, the

court noted that since Brotherton was decided, changes

49a

in Ohio law suggest that another reading may be

possible. After Hainey was decided, and after the acts

giving rise to the underlying action in this case, the

General Assembly enacted R.C. 313.123, effective

August 2006, which now expressly governs retained

autopsy specimens, classifying them as medical waste

and authorizing the coroner to dispose of them as such.

Ohio Statutes at the Time Pertinent to This Case

{fi 29} Even before R.C. 313.123 was enacted, a

deceased’s next of kin had no protected right in

autopsy specimens pursuant to Ohio statutes. The

Ohio Revised Code authorizes coroners to perform an

autopsy when the coroner believes an autopsy is

necessary. R.C. 313.131(B). A coroner’s forensic

examination is a classic function of the police power of

the state. Many times, autopsy specimens and the

results of the forensic examination are essential

evidence in the prosecution of a crime. Sometimes,

autopsy specimens must be preserved for long periods

of time.

{fl 30} “When any person dies as a result of

criminal or other violent means, by casualty, by

suicide, or in any suspicious or unusual manner, when

any person, including a child under two years of age,

dies suddenly when in apparent good health, or when

any mentally retarded person or developmentally

disabled person dies regardless of the circumstances,”

the coroner must be immediately notified by the

attending physician or law enforcement agency that

obtains knowledge thereof. R.C. 313.12.

{ff 31} Pursuant to R.C. 313.121, if a child under

two years of age dies suddenly when in apparent good

50a

health, the death must be reported immediately to the

coroner, and, with certain exceptions, the coroner or

deputy coroner must perform an autopsy on the child.

In accordance with R.C. 313.121 and 313.131, the

coroner may decide not to perform an autopsy on the

child if the coroner has reason to believe it would be

against the religious beliefs of the child’s parents.

However, the coroner is authorized under both sections

to perform the autepsy in spite of those religious

beliefs when the coroner concludes that the autopsy is

a compelling puclic necessity. R.C. 313.131. Further,

the Ohio Administrative Code mandates that coroners

retain the brain and other specimens resulting from

the autopsy of a child under two for a period of at least

six months when warranted by the circumstances.

Ohio Adm.Code 3701-5-14(B)(6).

{f/ 32} “The coroner shall notify any known

relatives of a deceased person who meets death in the

manner described by section 313.12 of the Revised

Code by letter or otherwise. The next of kin, other

relatives, or friends of the deceased person, in the

order named, shall have prior right as to disposition of

the body of such deceased person.” R.C. 313.14.

However, pursuant to R.C. 313.15, “|a]ll dead bodies in

the custody of the corner shall be held until such time

as the coroner, after consultation with the prosecuting

attorney, or with the police department * * * or with

the sheriff, has decided that it is no longer necessary

to hold such body to enable him to decide on a

diagnosis giving a reasonable and true cause of death,

or to decide that such body is no longer necessary to

assist any of such officials in his duties.”

{fl 33} In 2006, the Ohio General Assembly enacted

R.C. 313.123, which defines the term “autopsy” for

5la

purposes of R.C. Chapter 313 and provides that

“le]xcept as otherwise provided in division (B)(2) of

this section, retained tissues, organs, blood, other

bodily fluids, gases, or any other spec:mens from an

autopsy are medical waste and shall be disposed of in

accordance with applicable federal and state laws,

including any protocol rules adopted under section

313.122 of the Revised Code.” R.C. 313.123(B)(1).

(Emphasis added.) The respondents’ claims in this case

arose before this statute’s enactment.

iil 34} Moreover, R.C. 313.123 notes that if an

autopsy is performed on a deceased person and the

coroner has reason to believe that the autopsy is

contrary to the deceased’s religious beliefs, the coroner

shall not remove any specimens, including, but not

limited to, tissues, organs, blood, or other bodily fluids,

from the body of the deceased person unless it is a

compelling public necessity. And with the exception of

a DNA specimen, which may be retained, “the coroner

shall return the specimens, as soon as is practicable, to

the person who has the right to the disposition of the

body.” R.C. 313.123(B)(2) and (B)\(3).

{f_ 35} When the coroner is informed that an

autopsy is “contrary to the deceased person’s religious

beliefs,” the coroner is to delay the autopsy for 48

hours to give the objecting person time to file suit to

enjoin the autopsy. R.C. But this rule does not apply to

cases involving aggravated murder, suspected

aggravated murder, murder, suspected murder,

manslaughter offenses, or suspected manslaughter

offenses. R.C. 313.131(F)(1). Also, the coroner has no

obligation to obtain consent from the next of kin of a

decedent to perform an autopsy. R.C. 2108.52. Further,

the coroner’s right to perform an autopsy is paramount

52a

to the ability of the decedent or next of kin to make a

gift of a body part. R.C. 313.13(A).

{fi 36} Thus, while R.C. 313.14 gives next of kin a

right to disposition of the body, that mght does not

arise until after the coroner has performed his duties

and does not include forensic specimens that were

retained by a coroner for forensic examination and

testing.

Other Ohio Cases

{fl 37) Although this court has not previously

addressed this issue, several lower Ohio courts, in

cases decided prior to Brotherton, held that a dead

body is not property. In Hedsell v. Hadsell (Allen

Cir.Ct. 1893), 7 Ohio C.C. 196, 1893 WL 942, *3, the

court held that “[a] dead body is not property.”

Similarly, in Hayhurst v. Hayhurst (Mar.1926),

Hamilton C.P. No. 199594, 4 Ohio Law Abs. 375, 1926

WL 2487, the Hamilton County Common Pleas Court

held that “[t]here can be no property in a dead body

and therefore a man cannot by will, dispose of same,

and it does not become part of his estate.” And as

previously mentioned, in Carney and Everman, two

Ohio courts more recently rejected the theory that a

surviving custodian has quasi-property rights in the

body of the deceased.

Other Jurisdictions

{9 38) In Fuller v. Marx (C.A.8, 1984), 724 F.2d 717

(applying Arkansas state law), the widow of a decedent

sued the coroner, alleging that the decedent’s organs

had been disposed of, which she alleged was a violation

of her constitutional rights. The Eighth Circuit

53a

recognized thai under Arkansas law, the next of kin

does have a quasi-property right in the dead body. Id.,

724 F.2d at 719. However, the court noted that it knew

of no Arkansas cases extending this quasi-property

right to all of the body’s organs. Id. The court rejected

the widow’s claim, holding that the failure of the

coroner to return the decedent’s organs after the

autopsy did not violate the widow’s rights. Id.

{71 39} In Culpepper v. Pearl Street Bldg., Inc.

(Colo.1994), 877 P.2d 877, parents brought an action

against those involved in mistakenly cremating their

son’s body. The Supreme Ccurt of Colorado held that

there was no property right in a dead body that would

support a claim for conversion. Id., 877 P.2d at 882.

{fl 40} Finally, in ShAults v. United States

(D.Kan.1998), 995 F.Supp. 1270 (applying Mississippi

law), the parents of a decedent upon whom an autopsy

had been performed filed suit claiming, among other

things, a property interest in the body’s organs

(including the brain and heart) that had been removed

during the autopsy (and later incinerated) and not

‘ncluded with the body for burial. The district court

held that no property right exists in a dead body that

would support an action for conversion. Id. at

1275-1276. The court concluded that the only right in

remains recognized by Mississippi law is the family

right to possess the body for burial and that that right

does not create a property right in the organs removed

for examination. Id., 995 F.Supp. at 1275.

IV. Conclusion

{ji 41} We are mindful of the right of a decedent’s

next of kin to attend to the proper preparation and

54a

burial or cremation of the body. But nothing in the

United States Constitution, the Ohio Constitution,

Ohio statutes, or common law establish a protected

right in autopsy specimens in Ohio. R.C. 313.14 simply

clarifies whom the coroner should contact to make

funeral arrangements. The interest that Ohio statutes

at issue here give next of kin in an autopsied

decedent’s body is to inter or cremate the body after

the autopsy has been performed. Our decision today

addresses only autopsy specimens, and not body parts

or fluids that the coroner or the examining individual

does not consider necessary to be examined, tested, or

retained in the autopsy.

{fl 42} If the General Assembly believes that next

of kin should have a right to autopsy specimens when

the coroner’s office is through with them, it should

provide that right by statute. The issues of whether

notice is required, what notice is required, and

whether and under what circumstances tissue and

organs can be removed and retained during the course

of an autopsy are issues for the legislature, not the

courts.

{fl 43} Accordingly, we answer the certified

question in the negative, holding that the next of kin

of a decedent upon whom an autopsy has been

performed do not have a protected right under Ohio

law in the decedent’s tissues, organs, blood, or other

body parts that have been removed and retained by

the corner for forensic examination and testing.

So answered.

55a

O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ.,

concur.

MOYER, C.J., concurs in answer only.

PFEIFER, J., dissents.

PFEIFER, J., dissenting.

{fl 44} The only question we face today is whether

Ohioans, upon the ueath of a family member, have a

protected right in the decedent’s body parts that were

removed and retained by a coroner for forensic

examination and testing. I dissent because | believe

that prior to the enactment of R.C. 313.123, which

purports to give the coroner the right to dispose of

such body parts, Ohio law gave next of kin a protected

right in a deceased family member’s body. That right

came from Ohio statutes and common law.

This Court’s Limited Role

{f_ 45} Our role in this case is only to make a

threshold determination as to whether a protected

right exists in Ohio. And if we decided that such a

right did exist, the federal court would have

determined whether the right rose to a level requiring

constitutional protection. “Although the existence ofan

interest may be a matter of state law, whether that

interest rises to the level of a ‘legitimate claim of

entitlement’ protected by the due process clause is

determined by federal law. Memphis Light |Gas &

Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56

L.Ed.2d 30]. This determination does not rest on the

label attache: to a right granted by the state but

rather on the :ubstance of that right.” Brotherton v.

Cleveland (C.A.6, 1991), 923 F.2d 477, 481-482.

56a

(fi 46} As the majority opinion states, the status of

the law at the time of the alleged wrong provides the

relevant context in this case; the plaintiffs-respondents

“must show that state law in effect at the time of the

incident gave them a property interest in their

deceased son’s body parts.” Majority opinion at J 14.

The United States Supreme Court in Bd. of Regents of

State Colleges v. Roth (1972), 408 U.S. 564, 577, 92

S.Ct. 2701, 33 L.Ed.2d 548, held that “[p]roperty

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 such as state law — rules

or understandings that secure certain benefits and

that support claims of entitlement to those benefits.”

(Emphasis added.) Thus, since R.C. 313.123 was not

enacted until after the events in this case arose, it is

not pertinent to this case.

{fl 47} Our role, then, is to determine whether Ohio

law prior to the enactment of R.C. 313.123 provided a

right to a decedent’s next of kin in the deceased’s

remains. In Whaley v. Tuscola Cty. (C.A.6, 1995), 58

F.3d 1111, 1115, the Sixth Circuit Court of Appeals

summarized the sources of law that are the basis for

Ohioansg’ rights in regard to the remains of a deceased

family member:

{jl 48} “When [Ohio case law] and the Ohio statute

granting the next of kin the prior right to dispose of

the body, and the Ohio Anatomical Act are taken

together, it demonstrates that in Ohio there are

existing ‘rules and understandings’ which grant the

next of kin the right to dispose of the body by making

a gift of it, to prevent others from damaging the body,

and to possess the body for purposes of burial. Such

57a

rights in an object are the heart and soul of the

common law understanding of ‘property.”

Ohio Statutes

{f_ 49} Foremost among the rules’ and

understandings granting the next of kin control over a

decedent’s body is R.C. 313.14, which gives “[t]he next

of kin * * * prior right as to disposition of the body of

[the] deceased person.” The majority cannot get around

this statute, and thus tries to ignore it. The majority

waits until well into its opinion, 4 32, to even mention

R.C. 313.14, and even then merely quotes it without

discussion. Some paragraphs later, it says in a

conclusory fashion that the right granted in R.C.

313.14 “does not include forensic specimens that were

retained by a coroner for forensic examination and

testing.” It does not deign to explain why not, because

it cannot.

{fl 50} Pursuant to R.C. 313.14, it is the right of the

next of kin of the deceased to dispose of the deceased’s

body. R.C. 313.14 does not list exceptions to that right.

R.C. 313.14 does not define what constitutes the body,

but R.C. 3705.01(C) states: “ ‘Dead body’ means a

human body or part of a human body from the

condition of which it reasonably may be concluded that

death recently occurred.” Nothing in the Revised Code

provides any reason to believe that body parts

separated from the rest of the body during an autopsy

do not continue to be part of the body.

{fl 51) R.C. 313.15 establishes that the coroner’s

right to control the decedent’s body is jurisdictional

and temporary. The coroner has a statutory duty to

perform an autopsy in certain instances, not the right

58a

to dispose of the body, and his right to control the body

extends only as long as is necessary for the needs of

law enforcement. R.C. 313.15 states:

{fl 52} “All dead bodies in the custody of the

coroner shall be held until such time as the coroner,

after consultation with the prosecuting attorney * * *

or with the sheriff, has decided that it is no longer

necessary to hold such body to enable him to decide on

a diagnosis giving a reasonable and true cause of

death, or to decide that such body is no longer

necessary to assist any of such officials in his duties.”

{fl 53} Pursuant to R.C. 313.15, the family’s right

to disposition of the body is limited only as to the time

it may be exercised. By statute, the next of kin may

have to wait some length of time, but the disposition of

the body ultimately remains their right, and is

exercised once the autopsy is complete. Implicit in the

coroner's right to perform an autopsy is his right to do

what is necessary to perform the autopsy. Therefore,

the coroner cannot be held responsible for any bodily

fluids or tissue samples lost in the autopsy process.

But the right to the disposition of all of the remaining

body parts after the autopsy belongs to the deceased’s

family.

{fl 54} Further statutory support for the protected

right of family members in the decedent’s body is

found in Ohio’s Anatomical Gift Act, R.C. Chapter

2108. R.C. 2108.02(B) gives the next of kin the power

to make an anatomical gift of any part of the body of

the decedent, absent notice of the decedent’s contrary

indication. Further, a family member more closely

related to the decedent has the right to prohibit any

59a

anatomical gift from being made by a less closely

related family member. The statute provides:

{fl 55} “(B) Any of the following persons, in the

order of priority stated, when persons in prior classes

are not available at the time of death, and in the

absence of actual notice of contrary indications by the

decedent or actual notice of opposition by a member of

the same or a prior class, may make an anatomical gift

of all or any part of the body of a decedent for any

purpose specified in section 2108.03 of the Revised

Code:

{{| 56} “(1) The spouse;

{fl 57) “(2) An adult son or daughter;

{fl 58} “(3) Either parent;

{fl 59) “(4) An adult brother or sister;

{f| 60} “(5) A grandparent;

{fl 61) “(6) A guardian of the person of the decedent

at the time of the decedent’s death;

{fl 62} “(7) Any other person authorized or under

obligation to dispose of the body.”

{fl 63} Thus, again in R.C. 2108.02(B), the General

Assembly sets forth the right of family members to the

disposition of a decedent’s body, giving family

members the right to make anatomical gifts, and also

the right to prevent aii anatomical gift.

60a

{fl 64} All together, Ohio statutes grant next of kin

important rights regarding the remains of a family

member—the rights to possess, to control the

disposition of, and to prevent the disposition of the

remains.

State-Court Cases

{fl 65} This is a case of first impression in this

court, and the particulars of this matter are a first for

all Ohio courts. However, a number of Ohio appellate

decisions address in some manner the rights of next of

kin to the remains of their deceased family members.

Those cases establish that although a decedent’s body

is not chattel belonging to the next of kin, the next of

kin may bring a cause of action in their own right if

the remains of the deceased are not treated in an

appropriate manner.

{fl 66} In Brownlee v. Pratt (1946), 77 Ohio App.

533, 537-538, 33 0.0. 356, 68 N.E.2d 798, the court

recognized Ohio’s legal tradition supporting the proper

repose of the dead.

{fl 67} “The policy of the law to protect the dead

and preserve the sanctity of the grave comes down to

us from ancient times, having its more immediate

origin in the ecclesiastical law. This salutary rule

recognizes the tender sentiments uniformly found in

the hearts of men, the natural desire that there be

repose and reverence for the dead, and the sanctity of

the sepulcher.”

{fl 68} The common law’s attitude toward the

proper treatment of the dead is not merely

aspirational; instead, the law grants the next of kin a

6la

remedy when a deceased’s remains are mistreated. In

Brownlee, the court found that the “plaintiffs right of

burial of the dead was transgressed” when her

stepmother placed the remains of her second husband

in a burial vault containing the remains of the

plaintiffs mother and father. Id. at 539, 33 0.0. 356,

68 N.E.2d 798.

{fl 69} Although the court in Carney v. Knollwood

Cemetery Assn. (8th Dist.1986), 33 Ohio App.3d 31,

514 N.E.2d 430, rejected “the theory that a surviving

custodian has quasi-property rights in the body of the

deceased,” id. at 37, it nonetheless recognized that the

next of kin may properly bring an action for

intentional infliction of emotional distress based upon

the mistreatment of a deceased relative’s remains. In

Carney, a decedent's remains had been disinterred

during the preparation for another burial and were

then dumped on a refuse pile elsewhere in the

cemetery. Id. at 31. The court quoted with approval the

Wisconsin Supreme Court’s discussion of familial

rights regarding the treatment of a decedent’s

remains:

{fl 70} “ “The law is clear in this state that the

family of the deceased has a legally recognized right to

entomb the remains of the deceased family member in

their integrity and without mutilation. Thus the next

of kin have a claim against one who wrongfully

mutilates or otherwise disturbs the corpse.’ ” Carney,

33 Ohio App.3d at 36, 514 N.E.2d 430, quoting

Scarpaci v. Milwaukee Cty. (1980), 96 Wis.2d 663, 672,

292 N.W.2d 816.

{7 71} In Biro v. Hartman Funeral Home (1995),

107 Ohio App.3d 508, 669 N.E.2d 65, the Eighth

62a

District again recognized a cause of action in tort for

the desecration of remains.

{91 72} In Lverman v. Davts (1989), 54 Ohio App.3d

119, 561 N.F.2d 547, the spouse of a woman killed in

a car accident brought an action against the county

coroner, challenging the coroner’s decision to perform

an autopsy. The plaintiff alleged a violation of the

Fourth Amendment right against unreasonable

searches and seizures. Although the court found that

the plaintiffhad no cause of action against the coroner

in that case, it made clear that a next of kin does have

a possessory right in the remains of a loved one:

{f1 73) “There is no issue in this case of the

possessory night of a spouse or other appropriate

member of the family to the body of the deceased

person for the purpose of preparation, mourning and

bunal. This right is recognized by law and by the

decisions. See R.C. 313.14. This is not to say that a

corpse may not be temporarily held for investigation as

to the true cause of death.” Kverman, 54 Ohio App.3d

at 122, 561 N.E.2d 547.

{fl 74} Unlike in Fverman, there is no quarrel here

with the coroner’s right to perform an autopsy. The

issue here is whether once the coroner has completed

his duties, the next of kin can exercise their rights.

(Wl 75) The majority cites two ancient cases for the

proposition that “a dead body is not property.”

Majority opinion at ¥ 37. That is not the point. The

point is whether next of kin have a right to a proper

disposition of the body, and the cases cited by the

mayority actually support that idea. Both cases support

the idea that next of kin have the right to the

63a

disposition of the body; in each case, the dispute is

over which next of kin has that right.

(fl 76} The majority first cites Hadsell v. Hadsell

(Allen Cir.Ct.1893), 7 Ohio C.C. 196, 1893 WL 942,

which involved a dispute between a stepmother and

her deceased husband's children as to the proper spot

for their father’s burial. The Hadsell court wrote, “A

dead body is not property. There are no next of kin to

inherit it.” Id. at *3. In so writing, the court rejected

the idea that the right to disposition of the body is

determined by the order of inheritance. But the court

also noted that society recognizes that “when a person

dies he is to be accorded decent burial.” Id. The court

found that the stepmother’s wish to bury the deceased

in a location where the plot could be cared for and a

monument erected should win out. The court decided

the case in favor of the party most likely to visit and

take care of the grave:

(41 77} “In the case under consideration, if we are to

conclude from what we have observed, it would not be

Milo or James [the decedent’s children] that would

visit the grave of Almon EE. Hadsell; no monument

would they erect, no flowers would they strew upon the

tomb. The monument to be erected is furnished by

Mrs. Hadsell. The care to be bestowed upon the grave

will be her care, and the flowers will be strewn by her

hand.” Hadsell at *3.

{fl 78} The second case cited by the majority,

Hayhurst v. Hayhurst (Mar.1926), Hamilton C.P. No.

199594, 4 Ohio Law Abs. 375, 1926 WIL 2487, is a

one-page common pleas court decision; it is another

case involving a familial dispute regarding a place of

burial. The Hayhurst court, too, found that “|t]here can

644

be no property in a dead body and therefore a man

cannot by will, dispose of same, and it does not become

part of his estate.” The court was faced with competing

family members’ ideas on the decedent’s burial, and

found in making its decision that “Iclases of this

nature must be considered by a court of equity on their

own merits having due regard to the wishes of the

decedent and to the rights and feelings of those

entitled to be heard by reason of relationship and

association.” Again in Hayhurst, the court recognized

the rights of family members.

(W 79) Other older cases establish that the night of

the next of kin to dispose of their family member’s

remains has been longstanding in Ohio. In 1886, this

court acknowledged that “at common law there is a

duty upon the husband to dispose of the body of his

deceased wife by decent sepulture in a suitable place.”

McClellan v. Filson (1886), 44 Ohio St. 184, 187, 5 N-E.

861.

{7 80} In Farley v. Carson (Hamilton Cty.Dist.Ct.

1880), 8 Ohio Dec.Reprint 119, 1880 WL 6831, the

court found that the right and duty of a wife to dispose

of the body of her deceased husband by decent

sepulture “must, of necessity, include the right to

possession of the body in the fitness for burial in which

death leaves it; and the organization of courts of

justice would be defective ifin a proper case redress by

damages might not be afforded for wilful violation of

such right.” Farley at *2.

{7 81} The plaintiff widow alleged that her

decedent husband’s doctor had examined the

decedent’s body after death and had made an incision

to examine an abscess on the deceased’s liver. The

Oda

court found that the allegations, if proved, would state

a cause of action. The court found that the plaintiff's

petition “alleged wilful desecration and mutilation,

which words were comprehensive enough to include

that disturbance of the decent fitness of the body for

burial, which would constitute the violation ofa right

This was a right in plaintiff as a widow, and entitled

her to an application of the rule, that wilful

infringement by one person of a right existing in

another, imports damage.” Id.

{{1 82) The court ruled in the doctor’s favor on the

facts, finding that the doctor’s action “was not a

mutilation of the body, or dismemberment or removal

of any part or organ, and for all the purposes of fit and

proper burial the body was left without disfigurement.”

Farley, 1880 WL 6831, at *3.

{4 83) All of the cited cases demonstrate that Ohio

courts have long and consistently held that a

deceased’s family members have a right. protected by

law in the proper disposition of the deceased’s body. It

is a possessory right, and prevents others from

damaging the body. There are no cases holding to the

contrary.

Federal Cases

{fl 84} Of course, the federal courts in the Sixth

Circuit have already spoken on the issuc we face

today. In Brotherton v. Cleveland (C.A.6, 1991), 923

F.2d 477, the court held that under Ohio law the

decedent’s wife’s interest in her husband's corneas rose

to the level of a legitimate claim of entitlement

protected by the Due Process Clause. In Hainey uv.

Parrott (Sept. 28, 2005), S.D.-Ohio No. 1:02-CV-733,

66a

2005 WL 2397704, a case virtually identical to the case

we face today, the district court held that the plaintiffs

had a “cognizable constitutional property interest in

their decedent’s body parts which the coroner’s office

violated when it disposed of their decedents’ brains

without prior notice.” Hainey at *6.

Other Considerations

{_1 85} In the end, this case is not about a random

piece of human tissue. It is about the decedent’s brain.

A brain is not a fingernail. The brain was the source of

the deceased’s every thought, aspiration, dream, fear,

laugh, memory, or emotion; it was the origin of every

word spoken, every song sung, every joke told;

everything a family member loved about the deceased

could be traced back to it. If the next of kin have any

right to the decedent’s body, the right must include the

brain.

, r

Conclusion

{fl 86) Whatever the label, Ohio statutes and

common law establish that Ohio recognizes a next of

kin’s rights in the disposition of a deceased family

member’s remains. Those rights, at least prior to R.C.

313.123, extend to the whole of the body and all of its

parts.

{Wi 87} How the coroner could have met his

obligation to respect the rights of family members is

not before this court. But the burden would not have

been heavy. It would have required, as suggested by

the court in Hainey, simply some kind of notice, with

options as to the ultimate disposition of the remaining

body parts, to the next of kin, or a retention of the

67a

entire body until it could be returned to the family in

its entirety.

{fl 88} According to the majority, this case turns on

the idea of property rights. But in truth, the point of

the plaintiffs-respondents, and a point that has been

recognized in Ohio law, is that a deceased’s remains

are not mere property. They are on a higher plane. The

law does not require respect or reverence for property,

but the law does require that in the treatment of the

dead. It is a requirement of the living that we all will

ultimately and assuredly also be the beneficiary of. It

should not be disposed of for the sake of convenience.

Dworken & Bernstein Company, L.P.A., and

Patrick J. Perotti; and John H. Metz, for respondents.

Donald W. White, Clermont County Prosecuting

Attorney, and H. Elizabeth Mason, Assistant

Prosecuting Attorney, for petitioners.

Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co.,

L.P.A., John R. Climaco, David M. Cuppage, Scott. D.

Simpkins, and Jennifer L. Gardner; and William D.

Mason, Cuyahoga County Prosecuting Attorney, and

David G. Lambert, Frederick W. Whatley, and Renee

A. Bacchhus, Assistant Prosecuting Attorneys, for

amici curiae Cuyahoga County Coroner and Cuyahoga

County Board of Commissioners, in support of

petitioners.

Patrick M. Fardal, for amicus curiae the National

Association of Medical Examiners, in support of

petitioners.

68a

Isaac, Brant, Ledman & Teetor, L.L.P., Mark

Landes, David G. Jennings, and Jennifer H. George,

for amici curiae 65 Ohio counties, County

Commissioners’ Association of Ohio, Buckeye State

Sheriffs’ Association, Ohio Association of Chiefs of

Police, Ohio Prosecuting Attorneys Association, and

Ohio Society of Pathologists, in support of petitioners.

Benesch, Friedlander, Coplan & Aronoff, L.L.P.,

Mark D. Tucker, and C. David Paragas, for amici

curiae Ohio State Coroners Association and Ohio State

Medical Association, in support of petitioners.

Nancy Hardin Rogers, Attorney General, and

William P. Marshall, Solicitor General, for amicus

curiae state of Ohio, in support of petitioners.

Ron O’Brien, Franklin County Prosecuting

Attorney, and Nick A. Soulas Jr., A. Paul Thies, and

Patrick J. Piccininni, Assistant Prosecuting Attorneys,

for amici curiae Franklin County Board of

Commissioners and Franklin County Coroner, ip

support of petitioners.

Dworken & Bernstein Co., L.P.A., Patrick J.

Perotti, and Nicole T. Fiorelli; and John H. Metz, for

amicus curiae Monreal Funeral Home, in support of

respondents.

Dworken & Bernstein Co., L.P.A., Patrick J.

Perotti, and Nicole T. Fiorelli; and John H. Metz, for

amici curiae the Catholic League and Brunner Funeral

Homes, in support of respondents.

69a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. 1:06cev274

DISTRICT JUDGE SUSAN J. DLOTT

[Filed March 12, 2007]

MARK ALBRECHT. et al.

Plaintiffs,

Vv.

BRIAN TREON, M.D., et al.,

)

Defendants )

)

ORDER GRANTING MOTIONS VO CERTIFY A

QUESTION TO THE OHIO SUPREME COURT

This matter is before the Court on the Motion of the

Cuyahoga County Coroner and the Board of

Commissioners of Cuyahoga County (hereafter

“Cuyahoga County”) to Certify a Question of State Law

to the Ohio Supreme Court (doc. 34) and the like

motions of 86 other Ohio county coroners and

70a

commissioners,’ Plaintiffs’ brief in opposition to these

motions (doc. 61), and the coroners’ and

commissioners’ reply memoranda.” For the following

reasons, the Court grants, with modification, the

motions to certify a question to the Ohio Supreme

Court.

I. BACKGROUND

This lawsuit is a putative class action against all

county coroners and/or medical examiners in the State

of Ohio which have removed, retained, and disposed of

body parts without prior notice to next of kin, and the

County Commissions and Commissioners of those

counties. (Doc. 2 at 1.) Eighty-seven counties (all

Ohio counties except Hamilton) are implicated in the

sult.

The fundamental question is whether the relatives

of a decedent have a legally cognizable interest under

Ohio law, protected by the Fourteenth Amendment, in

being notified by the county coroner that the coroner

has removed and retained body parts of the decedent

for forensic examination while returning the rest of the

body to the family. Plaintiffs Mark and Diane

Albrecht brought this lawsuit against the coroner of

Clermont County, Ohio, as well as the Board of County

Commissioners, after discovering from their son’s

autopsy report that the coroner’s office, or others on its

behalf, had removed their son’s brain for forensic

examination and retained it after the autopsy. (Doc. 1

' See docs. 38, 40, 41, 43, 45, 46, 49, and 53.

2 See docs. 77, 78, 79, 82, 83, and 85.

T1la

{1 37-38.) The coroner’s office did not notify the

Albrechts that their son’s brain had been retained.

Ud. at 9 39.) The Albrechts thus buried their son

without his brain and without any notice from the

coroner of that fact. (Ud. at J 40.) They allege they

have suffered legal damages as a result. (/d. at | 41.)

The Albrechts filed their lawsuit on the heels of a

nearly identical lawsuit brought by family members of

decedents against the Hamilton County coroner. In

that case, Hainey v. Parrott, Chief District Judge

Beckwith granted summary judgment to the plaintiffs

after concluding that they had “a_ cognizable

constitutional property interest in their decedent’s

body parts which the coroner violated when it disposed

of their decedents’ brains without prior notice.” Order

Granting Mot. Summ. J., No. 1:02cv733, 2005 WL

2397704 at *6 (S.D. Ohio Sept. 28, 2005). Defendants

appealed the Order to the Sixth Circuit Court of

Appeals but then settled the lawsuit. As a result, the

Sixth Circuit has not had an opportunity to affirm or

overturn Judge Beckwith’s Order.

The county coroners and commissioners in this

lawsuit generally assert that Judge Beckwith

“improperly expanded” Sixth Circuit precedent and

“misinterpreted” Ohio law when she concluded that

next of kin have a property interest in a decedent’s

organs. They ask this Court to depart from the course

set out in Hainey and instead certify to the Supreme

Court of Ohio the following question:

Whether the next of kin of a decedent, upon

whom an autopsy has been performed, have a

property right under Ohio law in the decedent’s

tissues, organs, blood or other body parts that

T2a

have been removed and retained by the coroner

for forensic examination and testing.

(Doc 34 at 1.)

Il. ANALYSIS

A. Standard for Certifying a Question

The decision to certify a question of state law to a

state supreme court is within the district court’s

discretion. Lehman Bros. v. Schein, 416 U.S. 386, 391

(1974). “(Ulse of the certification procedure is most

appropriate when the question of state law is new or

state law is unsettled.” Transamerica Ins. Co. v. Duro

Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995).

Furthermore, “[nJovel or unsettled questions of state

law may be appropriate for certification where

certification will save time, energy and resources, or

where there are conflicting federal interpretations of

an important state law question which would

otherwise evade state court review.” Metz v. Unizan

Bank, 416 F. Supp.2d 568, 574 (N.D. Ohio 2006) (citing

Arizonans for Official English v. Arizona, 520 U.S. 43,

77 (1997); Geib v. Amoco Oil Co. , 29 F.3d 1050, 1060

(6th Cir. 1994)).

The Ohio Supreme Court has established the

appropriate standard for certifying questions,

specifying that (1) the question of Ohio law must be

determinative of the proceeding, and (2) there must be

no controlling Ohic Supreme Court precedent on the

issue. Ohio Sup. Ct R. Prac. XVIII, Sec. 1. The

preliminary question, therefore, is whether

Defendants’ proposed question is determinative of this

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proceeding. The Court holds that, with modification,

it is.

B. Procedural Due Process

Plaintiffs allege that they were denied due process

of law when the county “took” body parts of their son.

To ascertain whether Plaintiffs, in fact, have recourse

for their alleged injury depends on whether they

possess a right to their son’s body parts that is

afforded procedural due process protection. The Sixth

Circuit has described the origin and nature of rights

entitled to procedural due process, explaining that

while the right itselfis state-created, one’s entitlement

to pre-deprivation due process of that right is a federal

matter:

The touchstone of procedural due process is the

fundamental requirement that an individual be

given the opportunity to be heard “in a

meaningful manner.” See Loudermill v.

Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th

Cir.1983), affd, 470 U.S. 532, 105 S. Ct. 1487,

84 L. Ed. 2d 494 (1985). Many procedural due

process claims are grounded on violations of

state-created rights ... ; rights that do not

enjoy constitutional standing. However, the

right to a hearing prior to the deprivation

is of constitutional stature and does not

depend upon the nature of the right

violated. The rationale for granting procedural

protection to an interest that does not rise to

the level of a fundamental right lies at the very

heart of our constitutional democracy: the

prevention of arbitrary use of government

power.

74a

Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)

(emphasis added); see also Memphis Light, Gas and

Water Div. v. Craft, 436 U.S. 1 (1978) (finding that

“lajlthough the underlying substantive interest is

created by ‘an independent source such as state law,’

federal constitutional law determines whether that

interest rises te the level of a ‘legitimate claim of

entitlement’ protected by the Due Process Clause”

(quoting Board of Regents v. Roth, 408 U.S. 564, 577

(1972))).

To this end, Plaintiffs are correct when they assert

that “[t]he question of whether the interest recognized

by Ohio law is a property right to which due process

attaches is a federal question, not a state matter.”

(Doc. 61 at 1.) However, Plaintiffs’ argument puts the

cart before the horse, so to speak, because in resolving

due process claims, “the existence of a ‘protected’

right must be the threshold determination.” Grinage,

82 F.3d at 1350 (emphasis added). Specifically,

Plaintiffs’ assertion that the next of kin in Ohio have

a “substantive interest in the remains of their

deceased loved ones” (doc. 61 at 2), while generally

correct, implies a broader protected right than that

which applicable precedent likely intended. At issue

here are not the remains of a decedent in genera! but

specifically those body parts of a decedent that are

removed and retained by a coroner for the purpose of

forensic examination and testing.

The question of whether the state of Ohio has

granted a decedent’s family members rights in the

individual parts of a dead body under certain

circumstances is not one of first impression in this

Circuit. The Sixth Circuit Court of Appeals has held

that a plaintiff has a “legitimate claim of entitlement”

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under Ohio law in her deceased husband’s body,

including his corneas, that is protected by the due

process clause of the Fourteenth Amendment.

Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir.

1991). The plaintiff in Brotherton sued the Hamilton

County, Ohio coroner and others after she learned

from her husband’s autopsy report that the coroner

had—without her consent—permitted her husband’s

corneas to be removed and used as anatomical gifts.

Id. Having determined that the plaintiffs section 1983

claim depended upon her having a constitutionally

protected property interest in her husband’s corneas,

the court went on to articulate the standard for

determining whether an interest is entitled to due

process protections. /d. at 479-80.

Property interests protected by the due process

clause must be more than abstract desires or

attractions to a benefit. Board of Regents v.

Roth, 408 U.S. 564, 577,92 S. Ct. 2701, 2709, 33

L. Ed. 2d 548 (1972). The due process clause

only protects those interests to which one has a

“legitimate claim of entitlement.” Jd. at 577, 92

S. Ct. at 2709. This has been defined to include

“any significant property interests,” Boddie v.

Connecticut, 401 U.S. 371 at 379, 91S. Ct. 780,

786, 28 L. Ed. 2d 113 (1971), including statutory

entitlements.

Id. at 480.

The Brotherton court then looked to Ohio law to

determine whether the plaintiffs interest in her

husband’s corneas rose to the level of a “legitimate

claim of entitlement” protected by the due process

clause. The court’s examination of state law revealed

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that, while Ohio courts avoided characterizing the

right in a dead body as a property right, they clearly

acknowledged that a surviving custodian had “some

interest” in the deceased, namely a “possessory right.”

Id. (discussing Carney v. Knollwood Cemetery Ass'n, 33

Ohio App. 3d 31, 514 N.E.2d 430 (1986) and Everman

v. Davis, 54 Ohio App. 3d 119, 561 N..2d 547).

Additionally, the court looked to the Ohio Anatomical

Gift statute, Ohio Rev. Code § 2108.02(13), which

grants a third-party survivor, under certain

circumstances, the authority to make or decline to

make anatomical gifts of the body parts of another,

including corneas. 7d. at 482. The court thus

concluded that “the aggregate of rights granted by the

state of Ohio to [the plaintiff] rises to the level of a

‘legitimate claim of entitlement’ in [the decedent’s}

body, including his corneas, protected by the due

process clause of the fourteenth amendment.””

Not long after it decided Brotherton, the Sixth

Circuit again considered a due process violation claim

arising out of an autopsy. In Montgomery v. County of

Clinton, No. 90-1940, 1991 WL 153071 (6th Cir. Aug.

9, 1991), the mother of a boy killed in a high-speed

auto accident asserted that the autopsy done on her

son, without her notice or consent, violated her due

process rights. As a basis for her claim, the mother

pointed to a Michigan statute which required the

. Notably, the Brotherton court found that it did not need to

determine whether the Supreme Court of Ohio would categorize

a spouse’s interest in the dead body as “property”: “Although the

existence of an interest may be a matter of state law, whether that

interest rises to the level of a ‘legitimate claim of entitlement’

protected by the due process clause is determined by federal law.”

Id. at 481-82.

TVa

medical examiner to use diligent effort to notify the

next of kin prior to performing an autopsy. The

Montgomery court distinguished Brotherton at least in

part on the basis of the statute underlying the claim:

There is no merit in the procedural due process

claim founded on the state statutory requirement

that the medical examiner make a diligent

effort to notify the next of kin as to the decision

to perform an autepsy. Whatever the nature of

the right created by the statute there is an

insufficient liberty or property interest under

this statute to create a valid procedural due

process claim. Although the notice requirement

in the state statute does not appear to be

discretionary, it does not. purport to establish a

right to contro] the dead body.

Id. at *2 (emphasis added).

In light of Brotherton and Montgomery, the

threshold question in this due process claim is

whether, under Ohio law, there exists for the next of

kin of a decedent upon whom an autopsy has been

performed “an interest” in the decedent’s tissues and

organs removed and retained by the corener for

forensic examination and testing. /loward, 82 F.3d at

1349. If so, then regardless of the nature of that

“interest,” it is a matter of federal law whether that

interest rises to a level of a “legitimate claim of

entitlement” protected by the Fourteenth Amendment.

Roth, 408 U.S. at 577.

78a

>. The State-Created Right

That Ohio law affords next of kin a protected right

in the “body” of the decedent is beyond dispute."

Ifowever, this does not, as Plaintiffs suggest,

automatically confer to the next of kin a protected

right in “body parts” of a decedent removed and

retained by the coroner for forensic examination and

testing. This is highlighted by the recent enactment of

Ohio Rev. Code § 313.123(B), which provides that

“retained tissues, organs, blood, other bodily fluids,

gases, or any other specimens from an autopsy are

medical waste and shall be disposed of in accordance

with applicable federal and state laws.” The only

exception, stated in § 313.123(B)(2), is when “the

coroner has reason to believe that the autopsy is

contrary to the deceas

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