Opposition Brief — Albrecht v. Treon

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Suprems Court, U.S.

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No. 10-687 OFFICE OF THE CLERK

MARK ALBRECHT; DIANE ALBRECHT, Both

individually and on behalf of others similarly situated,

Petitioners,

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 other similarly situated,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Mary Lynne Birck (0063496)

Counsel of Record

H. Elizabeth Mason (0051967)

Assistant Prosecuting Attorneys

Clermont County, Ohio

101 KE. Main Street, Second Floor

Batavia, Ohio 45103

(513) 732-8178

mbirck@co.clermont.oh.us

emason@co.clermont.oh.us

December 23, 2010

Attorneys for Respondents

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

Whether a decision by a state supreme court

holding that the state has never recognized a property

interest in autopsy specimens removec and retained by

a coroner during the course of a statutorily-mandated,

investigative autopsy undertaken pursuant to the

police power of the state must be distinguished from a

decision recognizing that next of kin have a property

interest in organs subject to donation?

Whether a property right is properly established by

state law as interpreted by the state’s highest court?

Whether Stop the Beach Renourishment v. Florida

Dept. of Environmental Protection, 130 S. Ct. 2592

(2010) has any relevance to this matter where state

law has never provided next of kin a property right in

autopsy specimens?

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

TAGE OF COT T nh ce esc ewwenn ii

TABLE OF AUTIOORGE I 66s cue oe ewes iv

SOT See PE ee aa ee eee eee 1

STATEMENT OF THE CASE ................ 2

I. Proceedings 610M ... .. ..5..4562). 45055 en 3

a. Beets and mWOGes .. . «ks veers eee 5

REASONS FOR DENYING THE PETITION .... 7

1. The courts below, including the Ohio

Supreme Court, have reviewed the present

case and have held, consistently, that

significant distinctions exist between the

facts and applicable law relevant to the

present case and those in the decisions

Petitioners claim to be controlling ........ 7

2. The Ohio Supreme Court’s clarification of a

question of property law regarding

specimens from a forensic autopsy in the

present case did not eliminate the legitimate

claim of entitlement of an individual or next

of kin to decide whether to donate organs

under the Uniform Anatomical Gift Act .. 12

3. In the absence of a state-defined property

right in forensic autopsy specimens, this

Court’s decision in Stop the Beach

Renourishment, Inc. v. Florida Dept. of

Environmental Protection, 130 S. Ct. 2592

(2010) is irrelevant to this matter . 20

UUM ec tt ce ec ee we te eee 22

TABLE OF AUTHORITIES

Cases

Albrecht v. Treon,

118 Ohio St. 3d 348 (2008) ............ passim

Albrecht v. Treon,

617 F.3d 890 (6th Cir. 2010) ... 5, 16, 18, 19, 20

Board of Regents v. Roth,

GGG UT. DUET e) 6 iceckde ns eno 44 sae

Boddie v. Connecticut,

GOP 45... B72 ClO E) 6k cane §

Brotherton v. Cleveland,

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

Lehman Bros. v. Schein,

G36 Ue Se Cre) xk kS Oke e eee 1]

Longaberger Co. v. Kolt,

586 F.3d 459 (6th Cir. 2009) .......... tax 20

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

G30 Se. 6 UA oe eee eee 7

Montgomery v. County of Clinton,

940 F.2d 661 (6th Cir. 1991) ............ 9,10

Solem v. Helm,

Ge te: ate Ch) 6s kek Soe eee 22.

Stop the Beach Renourishment, Inc. v. Florida

Dept. of Environmental Protection,

1a0 S. Ct. ZOGS (ZO1O) .. cc ceca 7,11, 12, 20

Waeschle v. Dragovic,

576 F.3d 539 (6th Cir. 2009), cert. denied, 1308S

ee ere . 5,18

Whaley v. County of Tuscola,

58 F.3d 1111 (6th Cir. 1995) ............ 3, 18

Williams v. Taylor,

Se UG. DOS CRO) ieee cc cee vances ese

Statutes

See PE: Co a nce tae eos 3

SO Re NS Te 05s. 3- 55-4 2 oe ee See Oe 13

CORO BRA. Re wo eo co oe ee eee ae 14

Se A URE 6s bv ok oo eer 14

2 8 ee be ) A ae er 13, 15

oe Ra Fb. eA oe 17

aE oe 2) &. 5 ear 14

Cee Oe, RA ns ce ee vee ee ee es 15

[pee Be Gos BE ce ee ecw eee eae cen 15

Onto H.C. $ Z10G.01, ef 000. «0. ccc cc wee eees 17

Ohio R.C. § 2108.02(B) 8 12,16

Ohio R.C. § 2108.02(E) 18

Uniform Anatomical Gift Act, Ohio R.C. & 2108.01.

et seq pass_tm

Regulations

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

Rules

Ohio Sup. Ct. R. Prac. XVIII 1]

]

INTRODUCTION

Decrying the end of federalism as we know it will

not make a silk purse out of Petitioners’ sow’s ear.

This matter is a simple one of distinguishing one case

-- the present one, involving the proper exercise of the

police power of the county coroner to examine and

retain body parts during the course of his investigation

into cause of death -- from another -- one involving the

private nght of next of kin to authorize or decline to

authorize organ donation.

The district court, finding that the question

whether Petitioners had a property right in autopsy

specimens, had not been answered by the Ohio

Supreme Court interpreting Ohio law, agreed to certify

it to the Ohio Supreme Court. In its response, the Ohio

Supreme Court held that while Ohio law “givels] next

of kin the 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.” Albrecht v. Treon, 118 Ohio St. 3d 348,

357 (2008)(emphasis in the original).

Petitioners argue now, and have argued since the

inception of the present case, that a 1991 decision of

the Sixth Circuit Court of Appeals, Brotherton v.

Cleveland, 923 F.2d 477 (6th Cir. 1991), where the

Court, interpreting Ohio’s Uniform Anatomical Gift

Act, found a private property right in organs subject to

donation, controls the outcome of this case. Petitioners

claim now that the Ohio Supreme Court and the Sixth

Circuit have impermissibly overruled binding federal

constitutional decisions, in particular Brotherton,

which, they allege, provide them with a legitimate

claim of entitlement to these autopsy specimens.

There are significant problems with Petitioners’

argument. First, Brotherton finds only a private right

arising under Ohio’s Uniform Anatomical Gift Act

which permits next of kin to authorize or decline to

authorize post-mortem organ donation. Next,

Petitioners have failed to inform this Court that in the

present case the Sixth Circuit has distinguished

Brotherton on both its facts and applicable law from

the present case where the facts involve a county

coroner exercising his discretion with regard to how to

perform an autopsy pursuant to a different set of Ohio

statutes, and, finally, that no right offered by

Brotherton has been implicated.

STATEMENT OF THE CASE

1. Proceedings below

On May 5, 2006, Petitioners filed their Complaint

in this matter in the United States District Court for

the Southern District of Ohio, Western Division

(hereinafter “the Ohio case”) as a putative plaintiffs’

class action against a putative defendants’ class of

eighty-seven Ohio county coroners and boards of

county commissioners. On January 28, 2008,

subsequent to the filing of the Ohio case, Appellant’s

counsel filed a strikingly similar Complaint in the

United States District Court for the Eastern District of

Michigan, Waeschle v. Dragovic, et al., Case No. 2:08-

CV-10393 (hereinafter, “the Michigan case”). In both

cases, the parties alleged a violation of their due

process right to notice and an opportunity to be heard

before deprivation of a property right autopsy

specimens from the bodies of their respective next of

kin held by a coroner for study and disposal. In both

complaints, the parties alleged that decisions of this

Court clearly established that next of kin had a

property interest in body parts of deceased relatives.

In the Ohio case, the Albrechts asserted:

The law in this area has been clearly

established by the Sixth Circuit in

Brotherton v. Cleveland M.D., 923 F.2d

477 (1991), in which the Hamilton

County Coroner’s Office was a party. The

Sixth Circuit 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 U.S.C. Section 1983 [sic].

(Emphasis in the original.)

In the Michigan case, Waeschle asserted:

The law in this area has been clearly

established by the Sixth Circuit in

Whaley v. County of Tuscola, 58 F.3d

1111 (6" Cir., 1995). The Sixth Circuit

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 U.S.C. Section 1983 [sic].

In March 2007 the Ohio district court granted

defendants’ motion to certify the following question to

the Ohio Supreme Court:

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

have been removed and retained by the

coroner for forensic examination and

testing.

Order Granting Motions to Certify, Case No. 1:06-CV-

274, Pet’rs’ App. E, p. 83a.

The Ohio Supreme Court accepted the question and

on June 5, 2008, answered the question in the

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

Pet’'rs’ App. D, p. 37a.

In the Michigan case, in June 2008, the Medical

Examiner filed a motion for summary judgment on the

due process ciaim based upon the defense of qualified

immunity. In the alternative, the Medical Examiner

moved the district court to certify a question similar to

that posed by the Ohio district court to the Michigan

Supreme Court. The trial court in the Michigan case

denied qualified immunity to the Medical Examiner

and denied the Michigan defendants’ motion to certify.

Thereafter, in September 2008, the Medical Examiner

filed an interlocutory appeal to the Sixth Circuit Court

of Appeals.

In Ohio, the Clermont County defendants filed

their Motion for Judgment on the Pleadings in October

2008. The trial court granted the defendants’ Motion

in May 2009. Thereafter, on June 12, 2009, the

Albrechts timely filed their appeal to the Sixth Circuit

Court of Appeals.

On August 14, 2009, the Sixth Circuit issued its

decision on the appeal of the Michigan case, Waeschle

uv. Dragovic, 576 F.3d 539 (6th Cir. 2009), reversing the

trial court’s denial of immunity to the medical

examiner and directing the trial court to certify the

question of whether a property interest in autopsy

specimens exists under Michigan law. Waeschle filed

a petition for certiorari in this Court, Case No. 09-879,

on January 21, 2010, which was denied on March 29,

2010.

On August 24, 2010, the Sixth Circuit issued its

decision in the present case. Distinguishing Brotherton

v. Cleveland, 923 F.2d 477 (1991) on its facts and

applicable law, as it had in Waeschle v. Dragovic, the

Sixth Circuit affirmed the trial court’s dismissal of

Petitioners’ claims for the reason that they had no

property interest in their son’s brain and could not,

therefore, support the first. element of a due process

clause claim. The Sixth Circuit affirmed, further, that

where no property right in autopsy specimens exists,

Petitioners were not deprived of a vested interest.

Petitioners now seek this Court’s review of the decision

in Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010),

Pet’rs’ App. A, p. la.

2. Facts and issues

Petitioners’ adult son died in an automobile

accident in 2002. After his death, his body was taken

by Respondent Clermont County Coroner, as required

by Ohio law, for the performance of an autopsy to

determine the cause of death. During the course of the

autopsy, Respondent Coroner removed and retained

Petitioners’ son’s brain. Petitioners were not informed

by Respondent Coroner that he had retained the brain

or any other fluids, tissues or organs after completion

of the autopsy. Accordingly, Petitioners buried their

son without notice that his brain had been retained.

Petitioners do not assert that they did not receive

the body of their son for burial. Nor do Petitioners

assert that Respondents mishandled or in any way

abused the corpse. They allege, instead, that the

exigencies of a properly conducted forensic

examination performed by a_ person lawfully

authorized to do so resulted in their not receiving the

entire body for burial. And, Petitioners assert,

Respondents’ failure to notify them that because of the

dissection and removal and testing of blood, organs,

fluids and tissue, they would not receive the entire

body for burial, violated the Ohio law as interpreted by

Brotherton, depriving them of a legitimate claim of

entitlement to the forensic autopsy specimens.

It is Respondents’ position, however, that

Brotherton finds only a private right of next of kin to

authorize or decline organ donation under QOhio’s

Uniform Anatomical Gift Act. Brotherton, does not,

therefore, control the outcome of this case. Because

property mghts are determined by state law and

because it determined that the legal issue involved had

not been determined by the Ohio Supreme Court, the

federal district court properly certified the question of

whether next of kin have a legitimate claim of

entitlement to autopsy specimens resulting from a

forensic examination of a body to the Ohio Supreme

Court. When the Ohio Supreme Court, distinguishing

the Brotherton holding, determined that no such right

exists, either at the time of its decision or at any time

in the past, the Sixth Circuit properly affirmed

dismissal of this case.

REASONS FOR DENYING THE PETITION

1. The courts’ below, including the Ohio

Supreme Court, have reviewed the present

case and have held, consistently, that

significant distinctions exist between the

facts and applicable law relevant to the

present case and those in the decisions

Petitioners claim to be controiling.

In 2007, when Respondents filed a motion

requesting the district court was to certify the question

of Ohio property law to the Ohio Supreme Court, the

district court, in granting the motion, cited Brotherton

for the well-settled proposition that property rights are

created by “an independent source such as state law.”

Order Granting Motions to Certify, Albrecht v. Treon,

Case No. 1:06-CV-274, p. 4, Pet’rs’ App. E, p. 74a

(hereinafter “Order”), citing Memphis Light, Gas and

Water Div. v. Craft, 436 U.S. 1 (1978), quoting Board

of Regents v. Roth, 408 U.S. 564, 577 (1972). Most

recently, in Stop the Beach Renourishment, Inc. v.

Florida Dept. of Environmental Protection, 130 S. Ct.

2592 (2010), this Court stated “Generally speaking,

state law defines property interests ....”

Further, in its Order granting Respondents’ Motion

to Certify, the district court relied on Brotherton to set

forth the “standard for determining whether an

interest is entitled to due process protections.” Order,

p. 6, Pet’rs’ App. E, p. 75a, quoting Brotherton uv.

Cleveland, 923 F.2d 477, 480. In articulating this

standard, the Brotherton court cited to well-settled

decisions of this Court:

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, 92S.Ct. at 2709.

This has been defined to include “ ‘any

significant property interests,’ Boddie v.

Connecticut, 401 U.S., 371 at 379, 91

S.Ct. 780, 786, 28 L.Ed.2d 113 (1971),

including statutory entitlements.

Id.

Before granting the motion to certify, the district

court, however, distinguished the facts informing the

present case from those alleged in Brotherton as well

as citing the differing statutes law applicable to the

two matters. First, the district court noted: “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.” Jd. at p.

5, Pet's’ App. E, p. 75a, citing, Brotherton uv.

Cleveland, 923 F.2d at 479-80. The district court noted

further that the Brotherton decision relied on Ohio’s

Uniform Anatomical Gift Act, specifically Ohio Revised

Code section 2108.02(B), “which grants a third-party

survivor, under certain circumstances, the authority to

make or decline to make anatomical gifts of body parts

to another.” Jd. at p. 6, Pet’rs’ App. FE, p. 76a, citing

Brotherton v. Cleveland, 923 F.2d at 482.

At the same time, the district court looked to a

decision of the Sixth Circuit, Montgomery v. County of

Clinton, 940 F.2d 661 (6th Cir. 1991). Although

unpublished, Montgomery involved the right of a

county coroner to perform an autopsy against the

wishes o1 next of kin. There the Sixth Circuit

distinguished Brotherton as offering a private right in

organ donation as opposed to the right of a county

coroner to use his discretion as to whether an

investigative autopsy would be performed. According

to the Sixth Circuit,

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 (6"

Cir.1991). In Brotherton the plaintiff had

an “aggregate of rights granted by the

state of Ohio” to contro! disposition of the

body, including the corneas, and thus had

a right to refuse removal of corneas for

purposes of a cornea transplant. Jd. at

482. In this case, the state left the

decision as to autopsy to the discretion of

the medical examiner, allowing the

autopsy with or without the permission

of the next of kin.'

Montgomery v. County of Clinton, 940 F.2d 661.

Noting that the Sixth Circuit itself distinguished

Brotherton, which involved the private right to direct

or decline organ donation, from Montgomery, “at least

in part on the basis of the statute underlying the

claim,” in granting Respondents’ Motion to Certify, the

district court held that “the threshold issue 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 coroner for forensic examination and testing.”

Order, p. 7, Pet’rs’ App. E, p. 77a.

Thereafter, the district court certified the following

question to the Ohio Supreme Court:

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,

' While the Sixth Circuit does not consider an unpublished case to

be binding precedent, it will consider such a case to be persuasive.

Longaberger Co. v. Kolt, 586 F.3d 459, 468 (6th Cir. 2009).

Accordingly, while Montgomery is not binding, it did reveal to the

district court that as early as 1991, the Sixth Circuit considered

the private right set forth in Brotherton to be distinct from that

asserted by the county coroner performing an investigative

autopsy in Montgomery. Montgomery, 940 F.2d 661 (6th Cir.

1991).

organs, blood or other body parts that

have been removed and retained by the

coroner for forensic examination and

testing.

Id. at p. 10, Pet’rs’ App. E, p. 83a.

In response, the Ohio Supreme Court held:

[T]he 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.

Albrecht v. Treon, 118 Ohio St. 3d 348, 358 (2008),

Pet’rs’ App. D, p. 37a.

Given that state law is the only indicator of what

defines a property right, when there is no precedent

upon which to rely to determine a particular matter

rises to the level of property right, the only avenue is

to inquire with the state’s highest court. The

mechanism provided for by law to make such inquiry

is certification of the question of state law to a state

supreme court. When, as in this case, the question is

one of first impression, the decision to certify’ a

question of state law to a state supreme court is within

the federal district court’s discretion. Lehman Bros. v.

Schein, 416 U.S. 386, 391 (1974). Even the Stop the

? Ohio Supreme Court Rule of Practice XVIII was adopted as

effective on June 1, 1994. Ohio Sup. Ct. R. Prac. XVIII.

Beach Renourishment, Inc. case upon which

Petitioners lean heavily for support of their argument,

exhibits the mechanism of certification of an

unanswered state law question to a state’s highest

court. Stop the Beach Renourishment, Inc. v. Fla. Dep't

of Enuvtl. Prot., 130 S. Ct. 2592, 2595 (2010).

2. The Ohio Supreme Court’s clarification of a

question of property law regarding specimens

from a forensic autopsy in the present case

did not eliminate the legitimate claim of

entitlement of an individual or next of kin to

decide whether to donate organs under the

Uniform Anatomical Gift Act.

In reaching its conclusion, the Ohio Supreme Court,

as did the federal district court, distinguished

Brotherton from the facts and law involved in the

present case. According to the Ohio Supreme Court,

The Brotherton court, in examining

[Ohio}) Rflevised].Clode}. 2108.02(B),

which governs who may make anatomical

gifts of a decedent’s body parts, concluded

that “laJlthough 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 of entitlement’ in

Steven Brotherton’s body, including his

corneas, protected by the due process

clause of the fourteenth amendment.” /d

Albrecht v. Treon, 118 Ohio St.3d at 352, Pet’rs’ App

D, p. 44a.

The Ohio Supreme Court next analyzed statutes

found in Chapter 313 of the Ohio Revised Code, those

governing the powers and duties of county coroners,

noting that “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.” Albrecht v.

Treon, 118 Ohio St.3d, at 355, Pet’rs’ App. D, p. 49a.

Acknowledging that R.C. 313.123, enacted in 2006,

and which specifically designated autopsy specimens

to be medical waste and authorizing the coroner to

dispose of them as such, did not apply to Petitioners’

claim, the Ohio Supreme Court nevertheless found

that other statutes of long standing supported its

finding that individuals have no property right in

autopsy specimens. For example,

‘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.

Pet’rs’ App. D, p. 49a. In addition, the

Supreme Court noted:

[plursuant to R.C. 313.121, if a child

under two years of age dies suddenly

when in apparent good 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 autopsy in

spite of those religious beliefs when the

coroner concludes that the autopsy Is a

compelling public 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 Administrative Code

3701-5-14(B)(6).

Id. at 355-56, Pet’rs’ App. D, pp. 49a-50a.

Ohio

The Ohio Supreme Court further addressed the

question of the temporal scope of its holding with

respect to a property mght in autopsy specimens.

“Even before R.C. 313.123 was enacted [in 2006], a

deceased’s next of kin had no protected right in

autopsy specimens pursuant to Ohio statutes.”

Albrecht v. Treon, 118 Ohio St.3d at 355, Pet’rs’ App.

D, p. 49a. In support of that holding the Ohio Supreme

Court thereafter engaged in an exhaustive analysis of

Ohio law found in Chapter 313 of the Ohio Revised

Code in effect in 1991 governing the conduct of

coroners. The Court concluded: “Thus, 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, Pet’rs’ App. D, p.

52a (emphasis in the original).

Petitioners insist, nevertheless, that the Ohio

Supreme Court changed Ohio law by “overruling”

Brotherton. The Ohio Supreme Court stated, in this

regard:

Brotherton, however, involved’ R.C.

Chapter 2108, the Anatomical Gift Act,

as it related to removal of coxneas 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, Pet’rs’ App. D, p. 44a.

Accordingly, the Ohio Supreme Court found that a

protected interest in autopsy specimens retained for

forensic examination and testing has never existed in

Ohio. Petitioners’ argument notwithstanding, the Ohio

Supreme Court’s response to the question certified to

it by the district court does not involve or even

implicate the private right to authorize or decline

voluntary organ donation and does not, therefore,

result in an unlawful “retroactive” application of Ohio

law.

Having received this response, the federal district

court dismissed Petitioners’ claims, and the Sixth

Circuit affirmed. Albrecht v. Treon, 617 F.3d 890 (6th

Cir. 2010), Pet’rs’ App. A, p. la. It is from this decision

that Petitioners filed their petition to this Court.

As an initial matter, the Sixth Circuit’s decision in

Albrecht v. Treon, addresses Petitioners’ ongoing

lament that Brotherton governs the outcome of their

lawsuit against Respondents. “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.” The

Sixth Circuit noted, “There is no similar statute at

issue in this case.” Albrecht v. Treon, 617 F.3d 890,

894, FN1 (6th Cir. 2010), Pet’rs’ App. A, pp. 6a-7a.

Specifically, in Brotherton the Sixth Circuit held:

OHIO REV. CODE § 2108.02(B), as part

of the Uniform Anatomical Gift Act

governing gifts of organs and tissues for

research or transplants, expressly grants

a right to Deborah Brotherton to control

the disposal of Steven Brotherton’s body.

* * * Although extremely regulated, in

sum, these rights form a _ substantial

interest in the dead body, regardless of

Ohio’s classification of that interest. We

hold 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.

Brotherton, 923 F.2d at 482.

Brotherton clearly acknowledges that the rights

granted by the state of Ohio arise under the Uniform

Anatomical Gift Act, Ohio Revised Code section

2108.01, et seg., and holds further that the rights in

question are “extremely regulated.” Yet, even Ohio’s

Uniform Anatomical Gift Act in effect in 1991 at the

time Brotherton was decided gave the coroner prior

right to organs otherwise subject to donation.

The rights of the donee created by the

anatomical gift are paramount to the

rights of others except that a coroner

or, in the coroner’s absence, a deputy

coroner, who has, under section

313.13 of the Revised Code, taken

charge of the decedent’s dead body

and decided that an autopsy is

necessary, has a right to the dead

body and any part that is paramount

to the rights of the donee.

Ohio Revised Code Section 2108.02(E)(emphasis

supplied).

The Sixth Circuit also noted that “the argument

that Albrecht [v. Treon, 118 Ohio St.3d 348 (2008)]

impermissibly ‘overrules’ and conflicts with Brotherton

is flawed. Brotherton is distinguishable from the facts

in this case ....” Albrecht v. Treon, 617 F.3d at 896,

Pet’rs’ App. A, p. 12a. Citing to its earlier decision in

Waeschle v. Dragovic, 576 F.3d 539 (6th Cir. 2009),

cert. denied, 130 S. Ct. 2063 (2010), the Sixth Circuit

stated:

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.

Albrecht v. Treon, 617 F.2d at 897, quoting Waeschie v.

Dragovic, 576 F.3d at 546-47, Pet’rs’ App. A, p. 13a.

Accordingly, the Sixth Circuit held, “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 ....”

Id., Pet’rs’ App. A, p. 13a.

Having distinguished Brotherton from the present

case and determined that Brotherton is neither

factually or legally similar, the Sixth Circuit addressed

Petitioners’ argument that their alleged rights under

Brotherton allegedly “vested” in 2002, the time of the

autopsy at issue, an event which occurred prior to the

Ohio Supreme Court’s 2008 answer to the district

court’s certified question.

The Sixth Circuit’s holding in this regard need not

be embellished and cannot be improved upon:

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 OQOhio’s

Uniform Anatomical Gift Act. Brotherton

is distinguishable from this case and does

not control the outcome, therefore,

Albrecht {v. Treon, 118 Ohio St.3d 348

(2008)] did not impact the law as set

forth in Brotherton. Thus, the question of

whether Albrecht |v. Treon, 118 Ohio

St.3d 348 (2008)] should be applied

retrospectively or prospectively is

inapposite here because Albrecht lv.

Treon, 118 Ohio St.3d 348 (2008)] did

not change Ohio law.

Id. at 898, Pet’rs’ App. A, pp. 15a-16a (emphasis

supplied).

A review of the facts of this case and the applicable

law, a review performed at length and in depth by the

federal district court, the Ohio Supreme Court and the

Sixth Circuit Court of Appeals, demonstrates that

Petitioners’ arguments are unavailing.

3. In the absence of a state-defined property

right in forensic autopsy specimens, this

Court’s decision in Stop the Beach

Renourishment, Inc. v. Florida Dept. of

Environmental Protection, 130 S. Ct. 2592

(2010) is irrelevant to this matter.

Petitioners’ entire argument is based on the

incorrect assumption that Brotherton was controlling

authority for this case. This is an entirely flawed

premise from both a procedural and a substantive

standpoint. As to procedure, not a single court in this

case’s history has held that Brotherton was the

applicable Jaw. Every court (United States District

Court, Ohio Supreme Court, Sixth Circuit Court of

Appeals) has held that Brotherton is distinguishable

and does not apply to the facts and legal issues

presented by this case. Thus, froma purely procedural

standpoint, Petitioners’ argument that a vested right

has been unlawfully taken away, is based solely on

their own interpretation of Ohio law as well as a

convoluted attempt to demonstrate that this Court

should perform a Stop the Beach analysis.

In actuality, petitioners are asking this Court to

simply overrule the Sixth Circuit Court of Appeals,

determine that Brotherton is applicable, and not

distinguishable. This substantive analysis is where

petitioners’ appeal falls short of constitutional

analysis. This is not a case of a vested property right

being taken away by a Court’s ruling, this is a case

distinguishable by facts and by statutes from

Brotherton, and every court in the two class action

suits filed by Petitioners’ attorneys in Ohio and in

Michigan has held that the facts presented here are

simply completely distinguishable:

Albrecht:

Supreme Court of Ohio

United States District Court

Sixth Circuit Court of Appeals

Waeschle:

United States District Court

Sixth Circuit Court of Appeals

United States Supreme Court (denial!

of petition)

Michigan Supreme Court

Brotherton cannot, as a matter of law and common

sense, be controlling authority over a case that

involves both different facts and different statutes, and

these distinctions are at the heart of all of the cases

above. Although there is not a bright line standard for

controlling/distinguishing authority, and not much

case law to explain the concept, a different set of facts

. - . - |

or a different law distinguishes a case.

A different set of facts or different law

distinguishes a case. Here, both the facts and statutes

applicable to Brotherton and the present case are

different, and this case is thus distinguished from that

upon which Petitioners rely. Accordingly, Brotherton

could not have and did not create a “vested” property

interest in facts and statutes which were not at issue

in Brotherton.

* While not directly on point, the following cases establish the

parameters of controlling versus distinguishable authority. A

prior case “is controlling only in a similar factual situation. Here

the facts are clearly distinguishable.” Solem v. Helm, 463 U.S.

277, 303 (1983) (reversed on other grounds). Essentially, “... a

rule is controlling only if it matches the case before the court both

‘as to law and fact,’ and most cases are distinguishable in some

respect.” Williams v. Taylor, 529 U.S. 362, 377 (2000).

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,