CONSERVATORSHIP OF THE PERSON OF ROBERT WENDLAND, Appellant

ROSE WENDLAND, Appellant,

v.

FLORENCE WENDLAND, ET AL., Respondents

Third Appellate District No. C029439

No. S087265.

California Supreme Court Appellant's Brief.

August 21, 2000.

 

APPELLANT ROBERT WENDLAND'S ANSWER BRIEF ON THE MERITS

 

JAMES M. BRADEN (SBN #102397)

JAMES T. DIAMOND, JR. (SBN # 131525)

PAMELA J. SIEUX (SBN #201102)

LAW OFFICES OF JAMES M. BRADEN

44 Montgomery Street, Suite 1210

San Francisco, CA 94104

Telephone: (415) 398-6865

Facsimile : (415) 788-5605

 

Attorneys for Appellant Robert Wendland

 

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES ... iii

 

I. INTRODUCTION AND SUMMARY OF ARGUMENT ... 1

 

II. STATEMENT OF MATERIAL FACTS ... 3

 

III. LEGAL ARGUMENT ... 11

 

A. The 1999 Amended Version of Probate Code Section 2355 Applies To the Decision of This Case, Rather Than The Former Version That Respondents Erroneously Make The Subject Of Their "Issue Presented" and Their Brief ... 11

 

B. Probate Code Sec. 2355, As Amended in 1999, Indisputably Authorizes Conservators, As A General Matter, To Withdraw Artificial Nutrition and Hydration From Conservatees Who Are, Like Robert Wendland, Neither In a Persistent Vegetative State Nor Terminally Ill ... 13

 

1. Section 2355's Plain Language Is Decisive Of The Question As It Neither Expressly nor Impliedly Limits The Type of Conservatee For Whom the Conservator May Withhold Artificial Nutrition And Hydration ... 13

 

2. The Official Comment Explaining The Legislative Findings for the 1999 Health Care Decisions Law Explicitly States That The Conservator's Power to Make Health Care Decisions Is Not Limited to PVS or Terminally Ill Conservatees ... 15

 

3. The Sec. 2355 Official Comment Reference to Drabick Affirms the Legislature's Intent in 1999 to Confer Power on Conservators In Regard to All Types of Conservatees, And Such Purpose Is Not Limited Because Drabick Involved a PVS Conservatee ... 18

 

C. Amended Sec. 2355 Is Not Unusual or Unorthodox as Respondents Claim, But Rather Is Substantially Similar to the Uniform Health Care Decisions Act ... 19

 

D. Amended Probate Code Sec. 2355, As Applied To the Facts of Robert Wendland's Case As Found By the Trial Court in Two Separate Proceedings, Certainly Authorizes Conservator Rose Wendland To Withdraw Artificial Nutrition and Hydration From Robert ... 21

 

E. The Third District Court of Appeal Erred in Ordering Remand to The Trial Court for Further Fact Findings Concerning The Sec. 2355 Elements Because the Separate Hearing Two Months After The Main Trial Afforded Respondents Full and Fair Opportunity to Present All Their Evidence On Those Very Points -- And They Lost ... 27

 

F. Robert Wendland's Constitutional Rights Are Not Implicated By Rose Wendland's Private Decision to Withdraw His Artificial Nutrition And Hydration ... 32

 

G. Because A Conservator Is Not A State Actor, The Third District Erred In Holding That The Constitution Requires That The Elements of Sec. 2355 Be Proved By "Clear and Convincing Evidence," Contrary to the Specific Statement in the Official Comment to the 1999 Amended Sec. 2355 That The Standard of Proof is Only Preponderance of the Evidence ... 38

 

H. This Court's Decisions in Thor v. Superior Court And Conservatorship of Valerie N., Which Respondents Utterly Misconstrue, Demonstrate That Sec. 2355 Certainly Is Constitutional ... 40

 

I. The Phrase "Medical Advice" In Section 2355 Is Not Void For Vagueness ... 48

 

IV. CONCLUSION ... 50

 

TABLE OF AUTHORITIES

 

United States Supreme Court Cases

 

Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 1070 (1952) ... 49

 

Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777 (1982) ... 37

 

Cruzan v. Missouri, 497 U.S. 261, 110 S.Ct. 2841 (1990) ... 40-44

 

Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445 (1981) ... 36

 

Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242 (1974) ... 48

 

Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687 (1988) ... 38

 

Federal Cases

 

Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F.Supp. 1104 (S.D. Miss. 1991), rev'd in part on other grounds, 995 F.2d 595 (5th Cir. 1993) ... 36

 

Colombrito v. Kelly, 762 F.2d 122 (2d Cir. 1985) ... 36

 

Doe v. Bobbitt, 665 F.Supp. 691 (N.D. Ill. 1987) ... 36

 

Henig v. Odorioso, 385 F.2d 491, 495 (3d Cir. 1967) ... 37

 

Hicks v. Lewis, 1996 WL 172994 (M.D. Fla. 1996) ... 36

 

Levine v. County of Westchester, 828 F.Supp. 238 (S.D.N.Y. 1993) ... 36

 

Malachowski v. Keene, 787 F.2d 704 (1st Cir. 1986) ... 36

 

Meeker v. Kurcher, 782 F.2d 153 (10th Cir. 1986) ... 36

 

Musso v. Suriano, 586 F.2d 59, 63 (7th Cir. 1978) ... 37

 

Offut v. Kaplan, 884 F.Supp. 1179 (N.D. Ill. 1995) ... 36

 

Schaffrath v. Thomas, 993 F.Supp. 842 (D. Utah 1998) ... 36

 

Snyder v. Talbot, 836 F.Supp. 19, 24 (D.Me. 1993) ... 36

 

Taylor v. First Wyoming Bank, 707 F.2d 388 (9th Cir. 1983) ... 35-36

 

Federal Statutes

 

42 U.S.C. 1983 ... 36

 

California Supreme Court Cases

 

Adoption of Kelsey S., 1 Cal.4th 816, 4 Cal.Rptr.2d 615 (1992) ... 32

 

Adoption of Michael H., 10 Cal.4th 1043, 43 Cal.Rptr.2d 445 (1995) ... 31-32

 

Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942) ... 30

 

Brian W. v. Superior Court, 20 Cal.3d 618, 143 Cal.Rptr. 717 (1978) ... 38

 

Building Industry Ass'n v. City of Oxnard, 40 Cal.3d 1, 218 Cal.Rptr. 672 (1985) ... 12

 

Burden v. Snowden, 2 Cal.4th 556, 7 Cal.Rptr.2d 531 (1992) ... 48

 

California Federal Savings and Loan Ass'n. v. City of Los Angeles, 11 Cal.4th 342, 45 Cal.Rtpr.2d 279 (1995) ... 14

 

Cobbs v. Grant, 8 Cal.3d 299, 104 Cal.Rptr. 404 (1972) ... 34

 

Conservatorship of Valerie N., 40 Cal.3d 143, 219 Cal.Rptr. 614 (1985) ... 44-48

 

Hills v. Superior Court, 207 Cal. 670, 279 P. 805 (1929) ... 19

 

Kruger v. Wells Fargo Bank, 11 Cal.3d 352, 113 Cal.Rptr. 449 (1974) ... 37

 

People v. Weidert, 39 Cal.3d 836, 218 Cal.Rptr. 57 (1985) ... 14

 

Robert F. Kennedy Medical Center v. Belshe, 13 Cal.4th 748, 55 Cal.Rptr.2d 107 (1996) ... 15

 

Rojo v. Kliger, 52 Cal.3d 65, 276 Cal.Rptr. 130 (1990) ... 48

 

Security Pacific Nat'l. Bank v. Wozab, 51 Cal.3d 991, 275 Cal.Rptr. 201 (1990) ... 14

 

Thor v. Superior Court, 5 Cal.4th 725, 21 Cal.Rptr.2d 357 (1993) ... 40- 44

 

California Appellate Court Cases

 

Barber v. Superior Court, 147 Cal.App.3d at 1006, 195 Cal.Rptr. 484 (1983) ... 33-34, 42

 

Bartling v. Superior Court, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984) ... 43

 

Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986) ... 43

 

Broadmoor San Clemente Homeowners Ass'n v. Nelson, 25 Cal.App.4th 1, 30 Cal.Rptr.2d 316 (1994) 12

 

Conley v. Mathes, 56 Cal.App.4th 1453, 66 Cal.Rptr.2d 518 (1997) ... 27

 

Conservatorship of Drabick, 200 Cal.App.3d 185, 245 Cal.Rptr. 840, (1988) ... passim

 

Conservatorship of Lefkowitz, 50 Cal.App.4th 1310, 58 Cal.Rptr.2d 299 (1996) ... 28

 

Conservatorship of Morrison, 206 Cal.App.3d 304, 253 Cal.Rptr. 530 (1988) ... 31

 

Eden v. Van Tine, 83 Cal.App.3d 879, 148 Cal.Rptr. 215 (1978) ... 48

 

Estate of Martin, 72 Cal.App.4th 1438, 88 Cal.Rptr.2d 37 (1999)

 

Gutknecht v. City of Sausalito, 43 Cal.App.3d 269, 117 Cal.Rptr. 782 (1974) ... 48

 

Lilian F. v. Superior Court, 160 Cal.App.3d 314, 206 Cal.Rptr. 603 (1984) ... 49

 

Osgood v. Shasta, 50 Cal.App.3d 586, 123 Cal.Rptr. 442 (1975) ... 38

 

People v. Hsu, (August 7, 2000, California Court of Appeal) 00 C.D.O.S. 6511 ... 49

 

People v. Rodriguez, 50 Cal.App.3d 389, 123 Cal.Rptr. 185 (1975) ... 49

 

San Miguel Consolidated Fire Protection District v. Davis, 25 Cal.App.4th 134, 30 Cal.Rptr.2d 343 (1994) ... 49

 

Sierra Nevada Memorial-Miners Hospital v. Superior Court, 217 Cal.App.3d 464, 266 Cal.Rptr. 50 (1990) ... 38

 

Wendland v. Superior Court, 49 Cal.App.4th 44, 56 Cal.Rptr.2d 595 (1996) ... passim

 

Willis v. State of California, 22 Cal.App.4th 287, 27 Cal.Rptr.2d 413 (1994) ... 14

 

Zimmerman v. Stotter, 160 Cal.App.3d 1067, 207 Cal.Rptr.108 (1984) ... 30

 

Appellate Court Cases of Other States

 

Protection and Advocacy System, Inc. v. Presbyterian Healthcare Services, 989 P.2d 890 (N.M. 1999) ... 20-21

 

California State Statutes

 

California Code of Civil Procedure 43 ... 27

 

California Code of Civil Procedure 631.8 ... 26-27, 31

 

California Code of Civil Procedure 909 ... 27, 31

 

California Evidence Code 776 ... 29

 

California Evidence Code 1157 ... 24

 

California Health & Safety Code 2185.2 ... 17

 

California Probate Code 1801(e) ... 49

 

California Probate Code 1880. et seq. ... 49

 

California Probate Code 1950, et seq. ... 47

 

California Probate Code 2101 ... 28

 

California Probate Code 2355 ... passim

 

California Probate Code 2650(f) ... 28

 

California Probate Code 4600 ... 15

 

California Probate Code 4615 ... 11, 16

 

California Probate Code 4617 ... 11, 13, 16

 

California Probate Code 4617(c) ... 12

 

California Probate Code 4650 ... 16, 34

 

California Probate Code 4684 ... 16

 

California Probate Code 4714 ... 16

 

California Probate Code 4740 ... 35

 

California Probate Code 4750 (a)-(c) ... 34

 

California Probate Code 4751 ... 35

 

California Legislative Bills

 

Assembly Bill No. 891 (Stats. 1999, ch. 658) ... 15-16

 

Rules of Court

 

California Rules of Court, Rule 29.3(c) ... 1

 

Legislative History

 

California Law Review Commission ("CLRC") Recommendation, Health Care Decisions for Adults Without Decisionmaking Authority, December 1998 ... 16, 19

 

Attorney General Opinions

 

64 Cal. Op. Atty. Gen. Cal. 712, No. 80-812 (1981) ... 37

 

Other Authorities

 

Eisenberg, Horvitz & Weiner, Civil Appeals and Writs, Sec. 8:183 ... 12

 

Huxley, Aldous, Brave New World ... 22

 

Uniform Health-Care Decisions Act ... 19-21

 

I.

 

INTRODUCTION AND SUMMARY OF ARGUMENT

 

Respondents' brief flagrantly violates this Court's Rule 29.3(c), and the consequences of that violation reverberate the length of the brief's preposterous arguments, non-arguments, and absurd hyperbolic rhetoric untethered to citations to the record or any other evidence. The Rule says in part: "The petitioner's brief on the merits, at the beginning of the body, shall quote any order of the Supreme Court specifying the issues." Respondents' failure to do this may have something to do with the startling fact that their brief mainly argues about the wrong statute, the former version of Probate Code section. 2355.

 

This Court specified in its letter of June 23, 2000 the questions to be addressed in the parties' briefs:

 

"(1) Does Probate Code section. 2355 (as amended by Stats. 1999, ch. 658, effective July 1, 2000) authorize the conservator to withdraw artificial nutrition and hydration from the conservatee under the facts of this case?

 

"(2) If so, does section 2355 as applied violate any constitutional right of the conservatee?"

 

Preemptively, we ask the Court to strike any reply brief from respondents that belatedly attempts, for the first time in reply, to address the Court's questions. Alternatively, if the Court accepts such arguments made for the first time in reply, in fairness we should be afforded the opportunity to file a sur-answer brief to address any new matter that should have been presented in respondents' opening brief.

 

Although respondents' brief make random, passing references to amended sec. 2355, they never actually address whether its text and legislative history authorize, as a general matter, conservators to withdraw artificial nutrition and hydration from conservatees such as Robert Wendland who are minimally conscious but who are neither in a persistent vegetative state ("pvs") nor terminally ill. We demonstrate in this brief that the plain language of the new statute, which makes no such exception, and the legislative history, which affirmatively states that the new law is not limited to pvs or terminally ill conservatees, definitively answers the Court's question as a general matter.

 

Similarly, respondents never actually address whether, as specifically applied to the facts of Robert Wendland's case, the amended statute authorizes his conservator and wife, Rose Wendland, to withdraw his artificial nutrition and hydration. Respondents fail to present or discuss the trial court's findings of fact -- based on the November 1997 trial and on a separate hearing in February 1998 on respondents' failed attempt to remove Rose as conservator -- that satisfy all the required elements for Rose to take that action.

 

We demonstrate in this brief that the trial court found -- even by the clear and convincing evidence standard that the Legislature in 1999 said does not even have to be met (preponderance of the evidence being the standard specified by the 1999 amendment) -- that Rose Wendland satisfied all the amended sec. 2355 elements of acting in good faith, based on medical advice, after considering Robert's best interests, including his likely wishes, based on his previous statements.

 

Having failed to address these findings, respondents thus concede that they are supported by substantial evidence. Moreover, their failure means they have waived any argument that remand actually is required for this Court to make a final determination that, "under the facts of this case," Rose Wendland may and should be authorized by this Court -- here and now without further ado -- to withdraw her husband's artificial nutrition and hydration.

 

Instead of answering this Court's question whether section 2355 as applied in the manner Rose has requested violates any of Robert's constitutional rights, respondents devote most of their attention to an apparent facial attack on the constitutionality of amended sec. 2355. But that attack fails because respondents have not demonstrated, and cannot demonstrate, that sec. 2355 is unconstitutional in all reasonably conceivable applications. Indeed, respondents appear to concede that it is or could be constitutional in some instances.

 

To the extent respondents do address the "as applied" question, their constitutional analysis is utterly incoherent. They blithely leap right over the obstacle that dooms their argument: The constitution does not govern Rose Wendland's exercise of discretion whether to continue her husband's artificial nutrition and hydration because she is not a state actor, and her merely being appointed by a court as Robert's conservator does not transform her into a state actor.

 

Moreover, the right of a close family member to make this decision is not a creature of amended sec. 2355 or any other statute, but rather derives both from the common law and from the only constitutional right that actually does pertain to this case: Robert's fundamental right, though he be incompetent to exercise it himself, to have his wife exercise his right to refuse further medical treatment.

 

This is the right that amended sec. 2355 regulates in a balanced way that does not limit the right too severely. The statute respondents would prefer this Court to enact, under which they say that Rose could "never" qualify to be able to withdrawn his artificial nutrition and hydration, is, ironically, the actual statute that would work an unconstitutional infringement of Robert's liberty and privacy rights not to have forced medical treatment.

 

Finally, respondents' single "Issue Presented" in their Petition for Review refers only to the "in good faith based upon medical advice" test for conservator decisionmaking that was contained in the former sec. 2355, and neglects the language added in the 1999 amendment. Accordingly, that Issue is moot. In any event, respondents' Issue asks whether the former statute "appropriately" regulates the conservator's decision. To the extent that "appropriate" is read to mean "constitutionally," the Issue is covered by this Court's own questions. But to the extent that "appropriately" is read as an inquiry into the wisdom, propriety or acceptable public policy of the statute (old or new), that matter is for the Legislature to resolve, not this Court, and indeed the Legislature resolved it in the 1999 amendments.

 

II.

 

STATEMENT OF MATERIAL FACTS

 

Robert Wendland was 42 years old on the most fateful day in his life, September 29, 1993. Appellants Joint Appendix In Lieu of Clerk's Transcript ("J.A.") 461. While driving his truck under the influence of alcohol in San Joaquin County, he rolled over while attempting to make a sudden U-turn. Id. He was found unresponsive at the scene, was intubated, and was taken to San Joaquin General Hospital. It was immediately apparent that he had suffered severe brain damage. Id.

 

Indeed, he remained completely nonresponsive to his environment -- i.e., in a coma -- for well over a year. J.A. 462. The physical survival of his body was maintained, as it continues to be today almost seven years later, by a jejunostomy tube, a device that is surgically inserted through the abdomen wall and stapled or sewn to the inside of his small intestine. Supplement to Reporter's Transcript ("Supp. R.T.") 27:12-13.

 

Rose Wendland, Robert's wife since 1978 and mother of their three children, Supp. R.T. 17:21-27, visited Robert once or twice a day, every day, during the first 12 months he was in the coma. Supp. R.T. 52:21. Rose was concerned from the start that keeping Robert alive in a coma was contrary to his specific statements, as recently as one week before the accident, that if such a thing ever happened to him, he did not want to be maintained on artificial life support of any kind, including feeding tubes. Reporter's Transcript ("R.T.") 114:1-3; 173:8; 173:26-28. Rose declined for almost two years to follow what she and her daughters knew to be Robert's wish because she hoped for his recovery. Supp. R.T. 62:10-12; 66:28 -- 68:15.

 

In light of the dispute that was later created by respondents, it is noteworthy that even according to their own legal theory, which they persuaded the trial court to accept, Rose had indisputable legal authority to order cessation of Robert's artificial life support at any time during the 16 long months he was in the coma. Yet she never sought to do that.

 

In or about January 1995, Robert apparently emerged from his coma and began to show some awareness. J.A. 462. By late spring of 1995, most of his family and health care providers agreed that he was inconsistently interacting with his environment. Id. At his highest level of functioning between February and July 1995, Robert was able, albeit inconsistently, to do such things as grasp and release a ball, operate an electric wheelchair on several occasions, draw a circle and the letter "R", and choose a requested color block out of four color choices. Id. On the other hand, neither at that time, nor at any time since, has Robert been able to speak or otherwise have any meaningful human communication, to feed himself, or to manage his own excretions. Id.

 

However, Robert's re-acquisition of some minimal awareness and motor skills had a serious negative aspect in that he frequently became, and continues to this day to be, restless, dysphoric, and combative. J.A. 469-70. On at least four occasions from January to July 1995, he pulled out his intestinal feeding tube. Supp. R.T. 27:17-22 (Dr. Kass); 62:19-22 (Rose Wendland) The first three times, Rose consented to its surgical reinsertion. However, she testified, "it's a terrible surgery. He has a tube in him that they inserted, and then a tube in his nose, and blood's in a jar. And it's not a very pretty sight at all." Supp. R.T. 62:16-18.

 

But after receiving word that Robert would need a fourth surgical reinsertion of the feeding tube, Rose and her daughters decided that they just did not want to put Robert through that again. Supp. R.T. 70:3-18. Rose testified that both her daughters said "Mom, you're not going to let him go through this again.' And, basically, they both said, 'No, this is not what dad wanted. You're just -- if you have him put through this again, you're just doing what you wanted because that's not what Dad wished and that's not what Dad said."' Supp. R.T. 70:26 -- 71:3.

 

As we demonstrate in this brief, amended Probate Code sec. 2355 grants Rose Wendland, as Robert's conservator, exclusive (though not absolute) authority to make for him the medical decision whether to have another operation to insert a feeding tube, or to have an operation to remove an existing feeding tube. But as is common in medical practice in California and most other states, the attending physician, who must of course implement whatever decision is made, asked the hospital's medical ethics committee to review the matter. R.T. 1030:26-28. Thus Dr. Ronald Kass ordered insertion of a nasogastric feeding tube, notwithstanding Rose's refusal to consent to yet another surgical reinsertion and re-stapling of the abdominal tube, in order to maintain the status quo pending ethics committee review. Supp. R.T. 30:18-28.

 

Not only did all of Robert's treating physicians endorse Rose's decision not to impose another surgical tube reinsertion on Robert, and to permit removal of the temporary nasogastric tube, but the 20-member ethics committee of Lodi Memorial Hospital unanimously concurred with that decision. Supp. R.T. 32:12- 14 (Dr. Kass); 74:15-18 (Rose Wendland). In addition, such matters are routinely reviewed by San Joaquin County's patient ombudsperson, Margaret Goodwin. She endorsed the decision based on interviews with Rose and her daughters, Supp. R.T. 93:11-25, and upon what she confirmed was the unanimous concurrence of the hospital ethics committee, whose meeting she attended. Supp. R.T. 94:6-17.

 

Before the nasogastric tube could be removed, Robert's estranged mother and half-sister learned through an anonymous telephone call (apparently by a hospital worker breaching medical confidentiality) what Rose, the doctors, the ethics committee, and the ombudsperson had decided. Wendland v. Superior Court, 49 Cal.App.4th 44, 47, 56 Cal.Rptr.2d 595 (1996). Respondents then obtained a temporary restraining order in early August 1995. J.A. 012. On August 8, 1995, Rose initiated proceedings to be appointed conservator for her husband. J.A. 025. On September 11, 1995, after a hearing in which most of the testimony cited above was presented, the trial court appointed Rose conservator, but denied her specific authority to withhold life-sustaining treatment from Robert. J.A. 032.

 

Some months later, the trial court denied respondents' request for appointment of an independent counsel to represent Robert. The Third District (after being directed by this Court to issue the alternative writ) reversed that decision in September 1996, Wendland, supra. That resulted in the trial judge's appointing the Public Defender's Office of San Joaquin County to serve as independent trial counsel for Robert Wendland, while his wife Rose and respondents continued to be represented by their separate attorneys.

 

Respondents' strategy backfired, however, when the San Joaquin County Deputy Public Defender, carrying out her duty to obtain independent medical examinations and to evaluate the situation in an unbiased manner, determined that it was in Robert Wendland's best interest for his wife, conservator Rose Wendland, to be allowed to exercise her statutory power to decide for him not to continue the devastated existence that he had, after all, told his wife and daughters several times he did not want. Undersigned independent appellate counsel -- who was initially appointed for the appeal in April 1998 by the trial court judge and reappointed by this Court on August 10, 2000 -- made the same evaluation, including a long visit with Robert Wendland, and came to the same conclusion.

 

Accordingly, the trial went forward from October to December 1997 with Rose's counsel and the San Joaquin County Public Defender each presenting witnesses and other evidence in support of Rose's right to make this decision. They presented 19 witnesses on 22 separate trial days, generating 2,452 pages of transcript, as well as many documentary exhibits. See R.T. Index. The extent and complexity of this trial came very close to being a travesty because the trial court's legal errors, analyzed in this brief, required Robert's and Rose's attorneys to introduce vast amounts of evidence that simply are not required for conservator action under Probate Code sec. 2355. This kind of bloated trial is precisely what the statute, and its legislative history, say should be avoided.

 

Ironically, respondents' brief uses the very fact of the bloated and out-of- control trial that they, themselves, engineered, as an argument against the wisdom (if not the constitutionality) of Probate Code sec. 2355. "Such litigation," they say, would "put the conservator on trial" and would "waste precious judicial resources and be ugly, intrusive, demeaning, emotionally charged and excruciatingly trying for the litigants," (ROB 22), and would be "protracted, unsavory, and intrusive" and have a "polarizing effect" on families (ROB 23). The judicial spectacle they already have produced in this case has been all these things and more, and they surely did "put the conservator [Rose Wendland] on trial," not only once but twice two months later in a separate proceeding to remove her as conservator. (The important facts concerning this removal proceeding -- which negate any need for remand in this case -- are set forth in detail in Part III(E) below.) And respondents managed to accomplish all this not despite -- but actually because -- the trial court judge did not properly apply sec. 2355.

 

However, a salutary aspect of the scope of the trial is that there can scarcely be any reasonable doubt of Robert Wendland's utterly devastated neurological condition and the virtual impossibility that he ever will get any better. Nationally recognized neurology expert Dr. Ronald Cranford diagnosed Robert as suffering from severe, irreversible brain damage that has produced a combination of severe paralysis, severe dementia, and aphasia (inability to speak or otherwise communicate). R.T. 503:20 -- 504:4. He has no meaningful ability to express emotion, talk, walk, sit, eat, drink, or control his bowel or bladder. R.T. 504:17-23. "To a very high degree of medical certainty," he will never significantly improve. R.T. 504:12-14. Dr. Ernest Bryant, one of the independent doctors the San Joaquin County Deputy Public Defender asked to evaluate Robert, summed up his condition as of September 1997:

"He is severely cognitively impaired with extremely poor short term memory, attention, and new learning capacity. His ability to communicate his basic wants and needs through some form of communication device is nonexistent. His ability to communicate orally with words is nonexistent in that he is mute. Affectively, he fluctuates between being quite passive and unresponsive to moments of marked irritability and aggressiveness when he is pushed to perform tasks by various staff personnel. His organization and planning abilities for even simple motor movements is severely impaired and for higher level cognitive tasks such as communication, complex motor tasks (such as utilization of utensils, etc.) is nonexistent. He is unable to swallow with any consistent ability such that he has ongoing problems with control of secretions and is unable to consume fluids or food through his own mouth. He is incontinent of bowel and bladder." J.A. 478.

Dr. Bryant clarified in his trial testimony that Robert's mind operates "at a very, very primitive level," R.T. 2162:6-7, that he is unable to think at all in the manner that we conceive humans do, R.T. 2163:16 -- 2164:26, and that any responses he shows to the environment, in the course of various attempts to train him, are merely rote execution of exceedingly simple tasks that are repeated over and over again. R.T. 2162:18-25.

 

Dr. Paula Sundance, a second doctor asked by the Deputy Public Defender to evaluate Robert, wrote in September 1997:

"I doubt that Robert will ever be able to swallow, eat, drink, speak, walk or experience joy. He can follow one-step commands inconsistently with his left arm and hand and left leg. He is unable to talk and is unable to consistently use an augmented communication device. He does not appear to recognize his therapists. He wife and daughter report that he does not recognize them. His mother and sister do report recognition.... His severely impaired neurological condition puts him at high risk for recurrent pneumonias which he has already experienced, recurrent bladder infections which has already experienced, and recurrent dental problems which have been ongoing." J.A. 470.

Dr. Sundance also found that Robert's impairments include "maladaptive behavior characterized by agitation, aggressiveness and non-compliance," "severe paralysis on the right and moderate paralysis on the left," "moderate spasticity," and "general dysphoria." J.A. 469.

 

The foregoing, and literally dozens of similar passages from the experts' written reports and live testimony, understandably convinced the trial court that Robert has no meaningful chance of return to cognitive and sapient life, i.e., to ever recover in any meaningful way. J.A. 623. Because respondents, however, have argued ever since August 1995 that Robert just needs more time, always just another six months, to show real progress, undersigned independent counsel in November 1998, a year after the trial, asked Drs. Sundance and Bryant to re-examine Robert and his recent medical history.

 

These independent doctors' written reports, which we are requesting by separate motion that this Court add to the record -- despite that the Third District refused to grant our motion to file them there -- affirm that Robert's condition has, if anything, worsened. "Given that it is now more than five years [in November 1998] since his initial injury and that it has been two years with no significant improvement in cognition being noted, it is the opinion of this examiner that it is extremely unlikely that any further improvement in his cognitive skills will occur." See our Motion to Submit Additional Evidence (Supplemental Medical Reports, p. 5), filed concurrently with this brief.

 

Respondents' Fact Statement (ROB 8-9) lifts out of context various snippets from the earlier trial reports of Drs. Bryant and Sundance to give a false and misleading overall impression of Robert's condition and purported abilities, although even respondents admit in a footnote that "Robert's ability to perform the enumerated tasks is admittedly inconsistent, secondary to, inter alia, medical and behavioral issues." Moreover, even the listed intermittent abilities appeared only briefly in 1995 and, we affirm to the Court, have not been seen since. Indeed, this is made clear in the November 1998 update medical reports that we hope the Court will consider. To the extent this issue may affect any Justice in making his or her decision in this matter -- and we do not in fact think any of it is legally relevant -- it is important to know that Robert Wendland has not been able for years to do the things listed at pages 8 and 9 of respondents' brief.

 

Respondents say, though they do not cite to any evidence in the record, "that there do not exist today, nor did there exist in July 1995 .. medical guidelines, criteria, protocol or authority governing" withdrawal of artificial nutrition and hydration from a patient such as Robert who is neither in a persistent vegetative state ("pvs") nor terminally ill. Actually, though, Dr. Bryant testified that such guidelines do exist because standards previously developed for pvs patients are applicable: "The medical guidelines would be the same for someone who was in a persistent vegetative that would be applied. That is, the patient would be provided comfort measures, make sure there was no pain present as much as any human being can do that medically. And all of the medical care involved would be the same as if this person was in a persistent vegetative state." R.T. 2280:16-23.

 

Although respondents' cross-examination attempted to impeach this expert opinion, it was not rebutted by any expert opinion offered by respondents.

 

Finally, respondents say that the potential (their emphasis) for abuse of sec. 2355 by unscrupulous conservators, doctors, or even courts is "clear, palpable and readily apparent." (ROB 30) However, respondents have presented no evidence in the record or otherwise, during the entire five years this litigation has been pending, to support this contention. Nor did respondents or anyone else present such evidence to the California Law Revision in 1998 when it was preparing the 1999 amending legislation, or to the Legislature itself during its deliberations that lead to adoption of the new law in October 1999. Moreover, we are not aware of the existence of any such evidence, and we believe that none exists.

 

III.

 

LEGAL ARGUMENT

 

A. The 1999 Amended Version of Probate Code Section 2355 Applies To The Decision of This Case, Rather Than The Former Version That Respondents Erroneously Make The Subject Of Their "Issue Presented" And Their Brief.

 

Respondents' single "Issue Presented", and the argument in their brief, apparently assume that the former version of Probate Code sec. 2355, prior to its amendment in 1999, governs decision of this appeal. Respondents' Issue refers only to the former requirement that the conservator make medical decisions for her incompetent conservatee "in good faith based upon medical advice."

 

But the 1999 amendment adds the following important new language to those requirements:

"The conservator shall make health care decisions for the conservatee in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator. Otherwise, the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest. In determining the conservatee's best interest, the conservator shall consider the conservatee's personal values to the extent known to the conservator.... For the purposes of this subdivision, 'health care' and 'health care decision' have the meanings provided in Sections 4615 and 4617, respectively." (Emphasis added).

 

Although respondents should have realized that a Petition for Review filed on April 4, 2000 could not possibly lead to a decision on the merits (if review were granted) prior to the July 1, 2000 effective date of the 1999 amendment, the oversight in their Petition in not appreciating the mootness of former Sec. 2355 might be excused. What is very difficult to understand, though, is that even respondents' brief focuses on the old law, despite the fact that this Court's first question to the parties in its letter of June 23, 2000, appears to presuppose that the Court has already determined that the new law applies: "Does Probate Code section 2355 (as amended by Stats. 1999, ch. 658, effective July 1, 2000), authorize the conservator to withdraw artificial nutrition and hydration from the conservatee under the facts of this case?"

 

Even assuming arguendo that the Court's question does not presuppose that the Court already has determined that the new statute applies here, it plainly does. The trial court's ruling in this case is that Rose Wendland, although confirmed as her husband Robert's conservator, is indefinitely forbidden from refusing the continued utilization of medically provided nutrition and hydration. This ruling is tantamount to a permanent injunction prohibiting Rose from exercising her sec. 2355 conservator powers to the full extent permitted by that statute, particularly in light of the fact -- as discussed in Part III(B) below -- that the new law makes explicit what was merely implicit in the old law: That a "health care decision" by a conservator is defined in new Probate Code sec. 4617(c) to include "directions to provide, withhold, or withdraw artificial nutrition and hydration."

 

"Since injunctive relief operates 'in futuro,' appellate courts reviewing an order granting or denying an injunction must apply the law in effect at the time of the appellate court's decision.'' Eisenberg, Horvitz & Weiner, Civil Appeals and Writs, Sec. 8:183 (emphasis added). Therefore, this Court should consider the changes to sec. 2355 that were made in 1999 after the trial court judgment and decide the appeal in accordance with the legislative change. Id., citing Building Industry Ass'n v. City of Oxnard, 40 Cal.3d 1, 3, 218 Cal.Rptr. 672 (1985); Broadmoor San Clemente Homeowners Ass'n v. Nelson, 25 Cal.App.4th 1, 4, 30 Cal.Rptr.2d 316 (1994) (affirmance on the basis of the prior law would be "an idle act" since appellants would have the right to obtain a subsequent modification of the judgment based on the changes in the law) (other citation omitted).

 

B. Probate Code Sec. 2355, As Amended in 1999, Indisputably Authorizes Conservators, As A General Matter, To Withdraw Artificial Nutrition And Hydration From Conservatees Who Are, Like Robert Wendland, Neither In A Persistent Vegetative State Nor Terminally Ill.

 

Probate Code Sec. 2355, as amended effective July 1, 2000, gives a conservator of a conservatee who has been adjudicated incompetent "the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary." The new material in the statute goes on to set forth criteria by which the conservator should make such "health care decisions." The statute, as noted above, incorporates the new Probate Code sec. 4617 definition of "health care decision": "Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation."

 

1. Section 2355's Plain Language Is Decisive Of The Question As It Neither Expressly Nor Impliedly Limits The Type of Conservatee For Whom the Conservator May Withhold Artificial Nutrition and Hydration.

 

The plain language of both sec. 2355 and the incorporated sec. 4617 definition contain no express or even implied limitation on the types of incompetent conservatees for whom conservators may make "health care decisions." There is not the slightest suggestion in the plain language that the Legislature intended for conservators to have the power to decide to withdraw artificial nutrition and hydration only when the conservatee was in a persistent vegetative state ("pvs") or was terminally ill (however that might be defined). Rather, the power is plenary and not limited to the particular mental or other condition of the conservatee, provided, of course, that he has been adjudicated to be incompetent to make his own decisions.

 

Statutory analysis must always begin with the plain language. Whether the Legislature's words are wise or unwise, and specifically whether it should have limited the conservator's power to only pvs and terminally ill conservatees, is simply not for the courts to say. This Court has repeatedly made that clear:

"It is our task to construe, not to amend, the statute. 'In the construction of a statute ... the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted.' We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used. 'We must assume that the Legislature knew how to create an exception if it wished to do so."' California Federal Savings & Loan Association v. City of Los Angeles, 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279 (1995) (citations omitted).

See also C.C.P. 1858 (courts must not "insert what has been omitted" from a statute); Security Pacific National Bank v. Wozab, 51 Cal.3d 991, 998, 275 Cal.Rptr. 201 (1990) (it is "axiomatic" that the plain language of a statute should be followed and that adding language not used by the Legislature violates the "cardinal rule of statutory construction that courts must not add provisions to statutes").

 

Respondents suggest (although they appear to be writing about the original 1979 statute, not the 1999 amendment) that the Legislature did not consider cases of non-pvs, non-terminally ill conservatees such as Robert Wendland when it enacted the law. This is merely respondents' assertion, as they present no evidence concerning what the Legislature may have considered. But whether the Legislature thought about cases such as this or not, the plain language must be enforced as it stands:

"If there is a question as to wisdom [of the statute], it is a sufficient answer that the wisdom of the [statute] is not before us. The courts 'must follow the language used and give to its plain meaning, whatever may be thought of wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the Legislature." People v. Weidert, 39 Cal.3d 836, 843, 218 Cal.Rptr. 57 (1985). [Thus] "to allow a court ... to say that the law must mean something different from ... its language, because the court may think that its penalties are unwise or harsh, would make the judicial superior to the legislative branch of the government, and practically invest it with lawmaking power. The remedy ... is not in interpretation, but in amendment or repeal.' Willis v. State of California, 22 Cal.App.4th 287, 293, 27 Cal.Rptr.2d 413 (1994).

 

2. The Official Comment Explaining The Legislative Findings For The 1999 Health Care Decisions Law Explicitly States That The Conservator's Power To Make Health Care Decisions Is Not Limited To PVS Or Terminally Ill Conservatees.

 

This Court has instructed that "where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." Robert F. Kennedy Medical Center v. Belshe, 13 Cal.4th 748, 756, 55 Cal.Rptr.2d 107 (1996). As the language of Sec. 2355 is clear and plenary as to the conservator's health care decision authority, any exception to that authority would have to be clearly expressed in the legislative history in order to be recognized.

 

In fact, however, the legislative history of amended sec. 2355 actually contains a specific affirmation precisely to the contrary. As we will now demonstrate by analysis of the entire 1999 legislative scheme, the authority of conservators, and indeed of all health care surrogates, in regard to ending artificial nutrition and hydration definitely and specifically is not limited to pvs and terminally ill patients, and thus must include conservatees such as Robert Wendland. [FN1]

 

FN1. Because respondents' brief bases its argument on the wrong statute (the old law), respondents say such irrelevant things as "[t]he Legislative History lodged by Rose and Robert [is] absen[t] any reference, hint, suggestion of assertion that sec. 2355 was ever envisioned, drafted, intended or enacted with the Legislature's understanding" that it might apply to a non-pvs conservatee such as Robert Wendland. (ROB 45) But the Legislative History respondents refer to are the volumes appellants submitted in 1998 on the old law, and that material is now moot. The new law, as shown in the text below, certainly does make clear that non-pvs patients such as Robert are within its scope for conservator decisionmaking.

 

Section 39 of Assembly Bill No. 891 (Stats. 1999, ch. 658) enacted the Health Care Decisions Law of 1999 ("HCDL") that is codified commencing with Probate Code sec. 4600. This establishes new law governing several different types of surrogate decision makers for incompetent patients. Section 12 of the A.B. 891 amended sec. 2355 to conform to the language and purpose of the HCDL in regard to court-appointed conservators.

 

As noted above, the definitions of "health care" and "health care decision" contained in the HCDL (Probate Code secs. 4615 and 4617) are incorporated by reference in amended sec. 2355. Moreover, the new language in sec. 2355 concerning how the conservator should go about making her determination of the conservatee's best interest precisely tracks the same language that defines the approach to be followed by the surrogates covered by the HCDL. See Probate Code sec. 4684 (holders of power of attorney for health care); sec. 4714 (health care surrogates).

 

The California Law Revision Commission's Recommendation that proposed the HCDL and its accompanying conforming amendments that became A.B. 891 similarly affirms that the intention was to revise sec. 2355 so that it contained precisely the same rules and standards for surrogate decisionmaking that apply to other surrogates under the HCDL. See CLRC, Health Care Decisions for Adults Without Decisionmaking Capacity (December 1998), pp. 12, 48-49. This is confirmed in the Official Comment to sec. 2355: "Subdivision (a) of sec. 2355 is amended to add the second sentence providing a standard for making health care decisions. This standard is the same in substance as the standard applicable to other surrogate health care decisionmakers under [the HCDL]." The Official Comment goes on to say that "[u]se of the terms 'health care' and 'health care decision' from the [HCDL] make clear that the scope of health care decisions that can be made by a conservator under this section is the same as provided in the [HCDL]."

 

Thus the legislative findings in the HCDL apply to amended sec. 2355, and are set forth in the HCDL at Prob. Code sec. 4650:

"(a) In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

(b) Modern medical technology has made possible the artificial prolongation of human life beyond natural limits. In the interest of protecting individual autonomy, this prolongation of the process of dying for a person for whom continued health care does not improve the prognosis for recovery may violate patient dignity and cause unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the person."

Not only is this a ringing affirmation that the Legislature intended a broad construction of the conservatee's right to have health care decisions made for him, but the Official Comment to this section contains a specific and decisive rejection of the notion that this right should exist only when the conservatee is pvs or terminally ill:

"Section 4650 preserves and continues the substance of the legislative findings set out in former Health and Safety Code Sec. 2185.2 (Natural Death Act). These findings, in an earlier form, have been relied upon by the courts. Conservatorship of Drabick, 200 Cal.App.3d 185, 206, 245 Cal.Rptr. 840, 853 (1988) [other citations omitted]. The earlier legislative findings were limited to persons with a terminal condition or permanent unconscious condition. This restriction is NOT continued here in recognition of the broader scope of this division and the development of case law since enactment of the original Natural Death Act in 1976." (emphasis added).

The plain language of former sec. 2355, and other Probate Code sections relating to surrogate health care decisions, similarly did not limit the right to conservatees who were pvs or terminally ill. Thus as the Third District held below, there actually was no sound basis even under the old law for respondents' argument that the former sec. 2355 could not apply to Robert Wendland because he is neither pvs nor terminally ill. But that question, which respondents continue to argue in their brief, is moot. If the matter were ever in doubt, it has now been definitively resolved by the Official Comment to Sec. 4650.

 

3. The Sec. 2355 Official Comment Reference To Drabick Affirms The Legislature's Intent In 1999 To Confer Power On Conservators In Regard To All Types Of Conservatees, And Such Purpose Is Not Limited Because Drabick Involved A PVS Conservatee.

 

The Official Comment to sec. 2355 notes that the amended statute is "consistent with" Conservatorship of Drabick, supra, and includes two quotations from that opinion which emphasize that incapacitated persons have a right to have medical decisions in general made for them by conservators, whom sec. 2355 gives exclusive authority to do so: "The statute gives the conservator the exclusive authority to exercise the conservatee's rights, and it is the conservator who must make the final treatment decision regardless of how much or how little information about the conservatee's preferences is available."

 

Respondents say (ROB 45) that the Official Comment's reference to the Drabick decision means that the Legislature's 1999 amendment has "codified" Drabick such that a supposed limitation based on the pvs condition of conservatee William Drabick is imported as a limitation on the scope of new sec. 2355. Besides being contrary to the plain language of the new law and the Official Comment to sec. 4650, which makes clear that the law is not limited to the pvs conservatee, respondents' argument violates a basic tenet of how cases should be read.

 

As quoted in respondents' brief, the Drabick court merely said that it had "not considered any other case" than one where "there is no reasonable hope of a return to cognitive life," and that its opinion would not support a decision to forego treatment in some other case where there was a reasonable hope of such return. In fact, the trial court in the instant case did find that Robert Wendland has no reasonable hope of "return to cognitive and sapient life," and we submit that there is no material distinction between the locutions "cognitive" and "cognitive and sapient" (which indeed the Drabick court itself used interchangeably).

 

But quite apart from that, Drabick's comment about the effect its opinion might have on a case not before it is a pure example of mere obiter dictum that carries no precedential authority. "It is quite evident that [because] the question ... was not before the court, ... any language found in the opinion purporting to determine that question was not necessary for the decision of said appeal and must be regarded as obiter dictum." Hills v. Superior Court, 207 Cal. 666, 670, 279 P. 805 (1929). The Drabick court decided -- correctly -- the pvs case before it, and that was the only case it decided. The Legislature has now said that the general principles upon which Drabick based that decision are not limited by the particular pvs condition of Mr. Drabick, but justify application to every sort of incompetent conservatee, including Robert Wendland.

 

C. Amended Sec. 2355 Is Not Unusual Or Unorthodox As Respondents Claim, But Rather Is Substantially Similar To The Uniform Health Care Decisions Act.

 

Respondents contend that sec. 2355 is a "highly unusual and unorthodox statute" (ROB 18) that gives conservators a radical and unprecedented excess of discretion over health care decisions for their conservatees. If respondents are talking about former sec. 2355, as indeed they appear to be throughout their brief, the point, while incorrect, is moot. If respondents are talking about amended sec. 2355, then they are as shockingly ignorant of the actual nature of American law on this subject as they are ignorant of how to perform constitutional law analysis (as discussed below).

 

Amended sec. 2355 was a conforming amendment as part of California's adoption in 1999 of major portions of the Uniform Health-Care Decisions Act ["UHCDA"]: "The proposed law reaffirms this fundamental [constitutional liberty] interest along the lines of the Uniform Health-Care Decisions Act, ...'' CLRC Recommendation, supra, pp. 13-14 (emphasis added). Indeed, the language in sec. 5(f) of the UHCDA is effectively identical to the newly-added portion of amended sec. 2355:

"A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate."

 

The UHCDA was approved by the National Conference of Commissioners on Uniform State Laws in 1993. It has also been endorsed by the American Bar Association, the ABA Commission on Legal Problems of the Elderly, and the American Association of Retired Persons. See Uniform Law Commissioners' website at www.nccusl.org.

 

The Court of Appeals of New Mexico noted last year that the UHCDA recently adopted there provides a broader range of discretion to surrogate decisionmakers than did that state's former Right to Die Act, because "it is not restricted to decisions regarding those who are terminally ill or in an irreversible coma ... [and] it treats artificial nutrition and hydration just as other kinds of health care." Protection and Advocacy System, Inc. v. Presbyterian Healthcare Services, 989 P.2d 890, 893 (N.M. 1999). That court also helpfully explained that the UHCDA's focus (like amended sec. 2355's) is not, as respondents' preferred statute would be, on the content of the conservator's decision, but rather on establishing a reasonable process for that decision to be made:

"[T]he UHDCA focuses primarily on the procedures for decision making rather than the content of decisions. At oral argument, Professor Schwartz stated that the UHDCA reflects a judgment that 'the best way for the law to go was to decide who would make the decision, not what decision they ought to make.' Even if the medical facts are clear, different patients can make markedly different, but still reasonable choices, depending upon their religious beliefs, their assessments of the joys of life, their tolerance for pain, their regard for others, and a multitude of other facts. Again we quote Professor Schwartz's oral argument remarks: 'If we say it's too hard to provide standards across the board that apply in these cases, we have to figure out who is going to be in the closest position to the patient to be best able to make these on behalf of the patient.' To a large extent, the statute gives the patient the choice of the person who is most capable of making the decision that the patient would want made -- by permitting the patient to select an agent, guardian, or surrogate. When the patient has not made a selection, however, this statute establishes a common-sense hierarchy regarding who should act as surrogate. Although the decision of the agent, guardian, or surrogate is subject to judicial review, the substantive restrictions are limited." 989 P.2d at 894.

 

The California Legislature has adopted the very same policies, including the universal preference for the spouse before any other relative including a wife or half-sister -- which, of course, accords with the ancient customs of humankind -- as the preferred decisionmaker. This policy decision in the UHDCA and by our Legislature is utterly contrary to respondents' attempt to persuade this Court to write a different statute that would allow courts, rather than conservators, the broad discretion to make health care decisions for incompetent conservatees based on the courts' own views (which, of course, will end up being the view promoted by these respondents) as to whether it is in the incompetent person's best interest to live or die, or to receive medical treatment that can never make them better.

 

D. Amended Probate Code Sec. 2355, As Applied To The Facts Of Robert Wendland's Case As Found By The Trial Court In Two Separate Proceedings, Certainly Authorizes Conservator Rose Wendland To Withdraw Artificial Nutrition And Hydration From Robert.

 

Because amended sec. 2355 indisputably authorizes conservators, as a general matter, to withdraw artificial nutrition and hydration from their incompetent conservatees, the Court's first question to the parties may now be directly addressed: Based on the specific facts of this case involving Robert Wendland, does amended sec. 2355 authorize Rose Wendland to take that action?

 

The answer clearly is "Yes," based on the trial court's own fact-findings. These were derived not merely from the trial in autumn 1997, but also from a hearing in February 1998 on respondents' separate petition to remove Rose Wendland as conservator, which the court denied along with a ringing endorsement of Rose's exemplary qualification to be Robert's conservator. From these two proceedings, the trial court found all the facts necessary to sustain Rose's authority to act under the new law.

 

The reason the trial court did not allow Rose to act under the old law was that it failed to apply that law to those facts, which is the error we sought appellate review to correct. The new law does not materially alter what had to be proved under the old law, although it does add some specifications to guide application of the general principles that were contained in the old law and which are carried over into the new law.

 

Amended sec. 2355 maintains, as noted above, the requirements that the conservatee be adjudicated incompetent and that the conservator shall make health care decisions for him that the conservator "in good faith based on medical advice determines to be necessary." The amended section then adds the requirements that (a) the conservator shall make the health care decisions "in accordance with the conservatee's wishes to the extent known to the conservator, and/or (b) the conservator shall decide "in accordance with the conservator's determination of the conservatee's best interest." The trial court found all these facts, even to the unnecessarily high standard of proof by clear and convincing evidence, given that the Official Comment to the amended law says the standard is preponderance of the evidence:

"Evidence was presented which clearly and convincingly shows that the decision made by conservator in July of 1995 (not to reinsert conservatee's feeding tube) was made in good faith, based on medical advice and after consideration of conservatee's best interests, including his likely wishes, based on his previous statements..... Evidence clearly shows that Rose deeply loves Robert and has consistently sought only what she believes was best for him and her family. There can be no doubt that her actions were motivated by a desire to 'do the right thing' to bring stability to the rest of the family and closure in a way Robert would approve of." J.A. 623-24.

 

The trial judge immediately followed these fact findings by saying that "if there was no other legal test, the results of this hearing might be different." But the only "test" that can be discerned in his opinion is his wandering off into peculiar references to Aldous Huxley's entertaining novel of a flawed utopia, Brave New World, and to utterly irrelevant musing about what a conservator whose "motives and morals are not equal" to Rose Wendland's might do in some other case not before him. J.A. 624. In fact, under amended sec. 2355 there just isn't any "other legal test." The trial judge's fact-findings stated above are all that is required to authorize conservator action under the amended statute to remove artificial nutrition and hydration.

 

Even assuming arguendo that the amended law -- despite its plain language and legislative history -- should not authorize conservator action unless there is some finding that the conservatee has no reasonable prospect of recovery (expressed in Drabick and other cases as the prospect of return to "cognitive and sapient life"), the trial court made that finding as well, based on what it called overwhelming evidence, which presumably is something even more than "clear and convincing" evidence:

"This court explicitly finds, based on the overwhelming body of evidence, that conservatee has no reasonable chance for the return to cognitive and sapient life. Although neither comatose nor persistently vegetative, he remains severely brain damaged, partially paralyzed, totally dependent upon others for all of his needs, unable to communicate, and reliant upon life support for nutrition and hydration. Other than hopes expressed by some witnesses during the trial of this matter, there was no medical evidence that conservatee's condition is ever likely to improve past present levels." J.A. 623-24.

 

The trial court's findings on the actually required elements in amended sec. 2355 are supported by substantial evidence in the record.

 

(1) Incompetence. Dr. Ronald Cranford testified that Robert Mr. Wendland is incompetent to make any decisions regarding his medical treatment "to the highest degree of medical certainty." R.T. 678:21-24. There is no evidence in the record to the contrary.

 

(2) Rose Wendland's Good Faith and Consideration of Robert's Best Interests. The San Joaquin County patient ombudsperson, Margaret Goodwin, testified that Rose Wendland had given Robert's situation "considerable thought," Supp. R.T. 93:21-22, and that Rose was acting in Robert's best interest. Supp. R.T. 94:13- 14. Dr. Kass reported Dr. Kobrin's opinion, which he evidently shared, that Rose "was one of the most devoted spouses he had ever seen," and that he "was really struck by her devotion and her persistence and her attention to the care of her husband." R.T. 925:10-14. And Dr. Cranford testified, based on his dealings with Rose, that she was acting in good faith "to the highest degree of medical certainty." R.T. 832:21-24. He even added: "Which would be equivalent not to a clear and convincing evidence standard in a court but to beyond a reasonable doubt." R.T. 832:25-27.

 

(3) Rose Wendland's Decision Was Based on Medical Advice

 

The Statement of Material Facts in Part II sets forth the irrefutable facts that Rose Wendland not only sought medical advice from numerous medical professionals, but also obtained concurrence (even though sec. 2355 does not require that) from all of them, including every member of the Lodi Memorial Hospital's 20-person ethics committee. [FN2]

 

FN2. Respondents say the Court should not credit Rose's having sought and obtained unanimous approval by the 20-member hospital ethics committee because respondents were denied access to the deliberations of that committee by the hospital records privilege of Evidence Code Sec. 1157. But the nature of those closed-door deliberations is irrelevant under amended sec. 2355, which requires only that the conservator have sought "medical advice." The focus is on the conservator's having sought the advice, not the doctors' deliberations that generated the advice. Rose indisputably obtained "medical advice" from that committee that was a genuine result of its deliberations. Neither Rose nor any other conservator could reasonably be held later not to have satisfied the "medical advice" element of the statute based on some later cross-examination of the way the doctors conducted their deliberations.

 

(4) Rose Wendland's Consideration of Robert's Expressed Wishes Rose Wendland testified that Robert had expressed on at least two occasions not long before his September 1993 accident that he would not want to continue to live in circumstances such as have befallen him these past seven years, and that she gave careful consideration to these statements in making her decision to end his artificial nutrition and hydration. One of these conversations took place just a few weeks before the accident and was occasioned by the fatal illness of Rose's father:

"Q. Your father's serious condition prompted discussions between you and Robert about life and death circumstances, correct?

A. Correct.

Q. And, in fact, at least one of these conversations lasted many hours throughout the evening and night, correct?

A. Correct.

Q. During that conversation or conversations, did Robert ever specifically describe the condition he unfortunately finds himself in today?

A. No.

Q. Okay. Did he, however, make it clear to you that under no circumstances would he want to live on any type of life support whatsoever?

A. Yes, he did.

Q. And did he make it clear to you that under no circumstances would he want to live if he had to have diapers on?

A. Yes, he did.

Q. Did he make it clear to you under no circumstances he would want to live if he was being kept alive on the feeding tube?

A. Yes, he did.

Q. Did he tell you words to the effect if he could not be a full man, a husband, provider and father he would not want to be in that position? [colloquy with Court re objection omitted]

A. He had said if he couldn't be a husband, father, provider, you know, that he would never want to be in that condition....

Q. And did he make you promise that you would be strong in supporting his desires?

A. Yes, he did. And the same with me. I asked him for the same thing." R.T. 173:1 - 1874:19.

The trial judge seized upon Rose's statement above that Robert did not specifically describe the precise details of his actual condition these past seven years, holding that because Robert's statements did not reflect "an exact 'on all-fours' description of conservatee's present medical condition," Rose was not authorized to withdraw his artificial nutrition and hydration. J.A. 623. But that is not the test under amended sec. 2355. The conservator is required only to make her decision in accordance with the conservatee's wishes "to the extent known" to her. Rose indisputably did make her decision based on the wishes as they were known to her.

 

Moreover, even when the conservator does not know any prior expressed wishes at all, the statute permits her nevertheless to make the decision in accordance with her -- not a trial court judge's -- own determination of what she believes is the conservatee's best interest. The statute on its face, and based on its legislative history, does not permit the trial court, as occurred below, to substitute its own determination, de novo, of that best interest for the one made by the duly-appointed conservator acting in good faith.

 

The autumn 1997 trial of this matter, at which Rose gave the testimony above, was but the first of two proceedings where evidence was presented that informed the trial court's decision that Rose had established, even by clear and convincing evidence, that she made her decision in good faith, based on medical advice, after considering Robert's best interests, including his likely wishes, based on his previous statements. The 1997 trial did end with respondents prevailing on a C.C.P. sec. 631.8 Motion for Judgment, thus obviating respondents' need to put on an affirmative case-in-chief.

 

However, as described in the following section, respondents in fact had the opportunity at a separate hearing two months later to put on their case for why Rose did not meet the statutory requisites of good faith and due regard for Robert's best interests. The result of this hearing was a further affirmation that Rose meets those requisites, and thus has -- or should have -- statutory authority under amended sec. 2355 to withdraw Robert's artificial nutrition and hydration. Moreover, the results of that subsequent hearing surely informed the trial court's opinion, issued just two weeks later, that so strongly endorsed Rose's having acted in good faith, based on medical advice, with due consideration of Robert's best interests and expressed wishes.

 

E. The Third District Court Of Appeal Erred In Ordering Remand To The Trial Court For Further Fact Findings Concerning The Sec. 2355 Elements Because The Separate Hearing Two Months After The Main Trial Afforded Respondents Full And Fair Opportunity To Present All Their Evidence On Those Very Points -- And They Lost.

 

The Third District acknowledged that appellate courts in this state have broad power, when cases are not tried to juries, to direct entry of judgment (C.C.P. sec. 43) and to make fact-findings of their own (C.C.P. sec. 909). "Where it appears from the record as a matter of law that there is only one proper judgment on undisputed facts, we may direct the trial court to enter that judgment." Conley v. Mathes, 56 Cal.App.4th 1453, 1459, 66 Cal.Rptr.2d 518 (1997) But the Third District brushed this discretionary power aside by applying what it viewed as the firm rule that whenever a trial is ended by a successful C.C.P. sec. 631.8 motion, the prevailing party automatically gets its chance, after suffering an appellate reversal, to present its case upon remand for further trial. 93 Cal.Rptr.2d at 579-80.

 

But the Third District apparently overlooked that respondents did, indeed, have the equivalent opportunity to present their case that a remand will afford them. They should not be given another chance, particularly in a case that has been pending in the courts for five years, as to which the policy expressed in C.C.P. sec. 909 is particularly germane: "This section shall be liberally construed to the end, among others, that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues." In this case, the interests of justice require that a new trial not be held.

 

Approximately six weeks after their successful C.C.P. sec. 631.8 motion brought the trial to an end, respondents filed an Amended Petition for Removal of Conservator, and accompanying papers, in which they sought to remove Rose Wendland as Robert Wendland's conservator and to replace her with respondents Florence Wendland and Rebekah Vinson as co-conservators. Appellants' Supplemental Joint Appendix ("Supp. J.A."). 052-073. The gravamen of this petition is entirely a vicious attack on Rose Wendland's good faith and on her "regard," as they put it, for Robert Wendland's best interests. Supp. J.A. 053- 54.

 

A conservator is, by statutory definition, a fiduciary of the conservatee: "The relationship of ... conservator and conservatee is a fiduciary relationship that is governed by the law of trust." Probate Code sec. 2101. A "fiduciary" duty and relationship is nothing more nor less than a duty and relationship of "good faith": "In short, as a fiduciary, a conservator is bound to act with reasonable prudence and pursuant to a good-faith belief that [her] actions will tend to accomplish the purpose of its trust by benefiting the conservatee." Conservatorship of Lefkowitz, 50 Cal.App.4 superth 1310, 1314, 58 Cal.Rptr.2d 299 (1996). "Representatives occupy trust relations toward the legatees, and are bound to the utmost good faith in their transactions with the beneficiary." Estate of Martin, 72 Cal.App.4 superth 1438, 1439-40, 88 Cal.Rptr.2d 37, 40 (1999).

 

Plainly, therefore, respondents put Rose Wendland's good faith directly at issue. Indeed, for their petition to have even colorable apparent validity, they had to do so in order to meet any one of the removal criteria specified in Probate Code sec. 2650. Each of that statute's nine lettered grounds for removal reduces in essence to lack of good faith. But the one most closely congruent to respondents' alleged facts, and their specific reference to Rose's breach of "fiduciary" duty, is subdivision (f): Where the conservator has "such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties." Thus Rose could not lawfully be removed as Robert's conservator unless the court found that she was not acting in good faith and with due regard for Robert's best interests.

 

Although the hearing on February 23, 1998 on the removal petition was not transcribed for the record on this appeal, the detailed minutes indicate that, prior to the hearing, the trial court asked for and obtained the oral report of Fred Volz, Chief Superior Court Investigator, concerning Rose's good faith and regard for Robert's best interests. J.A. 617-18. The minutes recite: "This court informed counsel of oral report from [Mr. Volz]. Upon oral report, it was the recommendation of Mr. Volz to keep Rose Wendland as conservator of Robert Wendland." Id.

 

The trial court then granted respondents' request that a written report be obtained from Mr. Volz. That report, dated March 4, 1998, which is set forth at J.A. 619, is a ringing endorsement of Rose's good faith and regard for Robert's best interests: "Mrs. Wendland has been and is presently acting in her husband's best interests... She is a remarkable woman." (Emphasis added.)

 

Respondents were able at the February 23 hearing to present live testimony of Rose's purported lack of good faith and regard to Robert's best interests that would support their removal petition. The minutes reflect that they called Rose Wendland as an adverse witness for their case-in-chief pursuant to Evidence Code. sec. 776. They then called respondent Rebekah Vinson. While the minutes do not, of course, transcribe the testimony, they do make clear that respondents had a full and fair opportunity to put on whatever case they could muster of Rose's lack of good faith or regard to Robert's best interests.

 

After hearing all the testimony and other evidence, the trial judge denied the removal petition. Although no grounds are stated in the minutes, Judge McNatt did make clear two weeks later in his written opinion and judgment of March 6, 1998, issued two days after he received Mr. Volz's written report, that he was ruling both on the issues properly determined at the trial that was aborted back in December 1997 and on the removal petition that was heard at what was in effect the supplemental trial on February 23.

 

Thus, the final page of his six-page opinion, where his formal orders are set forth, numbers them (1) and (2). J.A. 625. The first order is that respondents' C.C.P. sec. 631.8 motion is granted. The second, and separate, order is: "Conservator Rose Wendland shall, as determined in a separate proceeding, remain the conservator of Robert" (but without the power to withhold life support) (emphasis added).

 

This order, and the separate proceeding from which it arose, may explain why the trial judge saw fit to include in his statement of reasons for his rulings that clear and convincing evidence had been shown that Rose was acting in good faith, based on medical advice and after consideration of Robert's best interests and expressed wishes. J.A. 623, lines 21-25. It is most unlikely the court would have included such a strong finding, at that level of proof, unless it had indeed permitted respondents to present the negative case on these matters that the termination of the main trial in December 1997 prevented their doing on an affirmative basis (as opposed to their extensive cross-examination of Rose and other witnesses during the 22-day trial itself).

 

In short, the very issues the Third District said must be remanded for further proceedings already have been litigated in order to sustain the trial court's final judgment that Rose should remain Robert's conservator. Moreover, respondents first filed, then later dismissed, an appeal from that adverse judgment. That ought to be the end of the matter of whether Rose Wendland's good faith and regard for Robert's best interests should be litigated again after a remand from this Court.

 

That this matter is finally concluded is also entailed by the law of collateral estoppel as established in the venerable case of Bernhard v. Bank of America, 19 Cal.2d 807, 813 (1942). That doctrine precludes re-litigation of issues decided in a prior proceeding if (1) the issue was the same as the one proposed to be presented, (2) there was a final judgment on the merits previously, and (3) the party to be estopped was a party to the prior proceeding. Obviously, No. (3) is satisfied because respondents are the same now as they were in 1998. Number (2) is satisfied because we just showed that a final, appealable judgment was entered, after submission of live testimony and other evidence at a hearing, that determined and adjudicated the issues sought to be re-litigated.

 

To determine No. 1, the requisite identity of issues, the court must compare the two actions, examining the rights and claims alleged and the harms for which redress is sought. Zimmerman v. Stotter, 160 Cal.App.3d 1067, 1073, 207 Cal.Rptr. 108 (1983). We have shown above that they are substantially identical for all practical purposes. The removal petition is a wide-ranging, and vicious, attack precisely on Rose's purported lack of good faith and lack of regard for Robert's best interests. It is highly unlikely, given the partisan spirit of that petition, that respondents had then -- or could legitimately raise or generate years later -- any further accusations or evidence pertinent to Rose Wendland's good faith and regard for Robert's best interests. They were fully motivated, for obvious reasons, to take their best shot, they did take it, and they lost.

 

The only even arguable doubt that might be raised concerns the "medical advice" element of Probate Code sec. 2355's test for conservator decisionmaking, which was not directly addressed at the February 23, 1998 hearing. However, more than one of the instances of Rose's derelictions alleged in the removal petition pertains to her alleged failure to seek out or keep herself abreast of information about Robert's medical condition. Supp. J.A. 053. Presumably, therefore, the court concluded that Rose had taken sufficient action to obtain "medical advice" about Robert's situation.

 

More important, as detailed in the Statement of Material Facts, it is simply indisputable on this record that any reasonable doubt (not merely proof to the level of clear and convincing evidence, not to mention the actually applicable preponderance level) could be raised that Rose based her decision on medical advice. She sought, and obtained, approval of the treating physician, Dr. Kass. She sought, and obtained, the unanimous approval of the 20-member Lodi Memorial Hospital Ethics Committee. She sought, and obtained, the approval of the patient ombudsperson.

 

Rose's decision to end Robert's grim feeding tube existence was subsequently endorsed by further medical advice of two independent doctors retained by the independent counsel that respondents themselves persuaded the Third District to order appointed in 1996. Moreover, the requirement to seek "medical advice" does not mean that one must take the advice, or that the statutory element can be negated by any respondents' substantive disagreement with the advice, whether by way of presenting the opinions of dissenting doctors or otherwise. Drabick, 200 Cal.App.3d at 200-01; Conservatorship of Morrison, 206 Cal.App.3d 304, 309, 253 Cal.Rptr. 530 (1988) ("medical advice" element of sec. 2355 "cannot reasonably be construed as demanding adherence to a physician's opinion on the ultimate decision").

 

It is time to bring an end to this litigation that began five years ago. While respondents may have a theoretical right to remand under C.C.P. sec. 631.8, in practical reality they have no such right because they already have exercised it. Moreover, this Court has indicated that it will exercise, in an appropriate case, its broad range of discretion under C.C.P. sec. 909, and its inherent powers, to curtail lengthy and seemingly endless litigation even where the losing party retains a theoretical right to return to the court below and, in effect, start the case over with new evidentiary proceedings.

 

For example, in Adoption of Michael H., 10 Cal.4th 1043, 43 Cal.Rtpr.2d 445 (1995), the trial court found that an unwed biological father was a statutory "presumed father" for purposes of vetoing adoption of his child, and the Court of Appeal affirmed. This Court reversed, holding that both lower courts had applied the wrong legal test for such a "presumed father." The man retained a theoretical right, indeed a respectable argument, that he ought to have the chance, on remand, to further fact proceedings that might enable him to meet the newly applicable Supreme Court legal test.

 

But this Court said that was unnecessary and inappropriate:

"There is no need for yet further evidentiary proceedings on whether Mark is entitled to constitutional protection [as a purported presumed father] under [the] Kelsey S. [case] because the trial court's existing findings are responsive to and dispositive of this issue. To remand for such further proceedings, moreover, would be to delay resolution of an already lengthy lawsuit and protract the uncertainty it has brought into the lives of all concerned, particularly the minor child, beyond the four-plus years already elapsed." 10 Cal.4th at 1060 n.4 (emphasis added).

 

Similarly, there is no need for remand here because the trial court's existing fact-findings, under the correct application of Sec. 2355, dispose of the matter. As in the four-year saga of Michael H., remand for another Wendland trial would delay resolution of a matter that has been in the courts for five years, and which, as in the adoption case, has brought and continues to bring uncertainty and distress into the lives of all concerned. Moreover, a further trial inevitably invites a further appeal, and on and on it could go. This is wrong and cannot be permitted to occur.

 

F. Robert Wendland's Constitutional Rights Cannot Be Infringed By Rose Wendland's Private Decision to Withdraw His Artificial Nutrition And Hydration.

 

Respondents' brief is littered with numerous seemingly random assertions about Robert Wendland's constitutional rights, but respondents never identify the precise foundation for their claim that application of Probate Code sec. 2355 violates those rights. Of course, Robert has the constitutional right to life, as indeed he also has the constitutional right -- albeit respondents concede it grudgingly -- to liberty, privacy and personal autonomy in regard to receiving medical care, including artificial nutrition and hydration.

 

But the constitution does not impose restrictions on all actions by all persons who may interfere with a person's life or liberty, but, instead, restricts only actions by the state, and by state actors, that do so. A conservator such as Rose Wendland, whose actions merely are regulated by sec. 2355, is not the state and she is not a state actor. The constitution does not reach her decisions on behalf of her husband and conservatee Robert Wendland.

 

Respondents appear to make the peculiar assumption, though they do not actually argue the point, that conservator action under sec. 2355 is entirely a creature of that law, i.e. that the statute confers on Rose a right to make decisions on Robert's behalf that she would not possess if the statute did not exist at all. This assumption is certainly wrong. Even if Rose had never sought appointment as Robert's conservator under sec. 2355, she and he still would have had a common law -- and indeed constitutional -- right to have her make medical decisions for him. Moreover, the Health Care Decisions Law of 1999 ("HCDL") confirms that she and he would have that right quite apart from any sec. 2355 conservatorship appointment.

 

Barber v. Superior Court, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983), established that a family member does not have to become a legal guardian or conservator in order to make the decision to withdraw artificial nutrition and hydration:

"[T]he People argue that only duly appointed legal guardians have the authority to act on behalf of another. While guardianship proceedings might be used in this context, we are not aware of any authority requiring such procedure. In the case at bench, petitioners consulted with and relied on the decisions of the immediate family, which included the patients' wife and several of his children. No formal guardianship proceedings were instituted.

"In the absence of legislation requiring such legal proceedings, we cannot say that failure to institute such proceedings made petitioners' conduct unlawful. Whether such proceedings are to be required in the future is again a question for the Legislature to decide....

"Furthermore, in the absence of legislative guidance, we find no legal requirement that prior judicial approval is necessary before any decision to withdraw treatment can be made." 147 Cal.App.3d at 1020-21 (emphasis in original).

 

The court in Conservatorship of Drabick, supra, characterized Barber as an "enormously important" decision: "Indeed, literature generated within the medical community indicates that health care providers rely upon Barber -- presumably every day -- in deciding together with families to forego treatment." 200 Cal.App.3d at 198 (following Barber in holding that a conservatorship or other legal proceeding is not a prerequisite for the right of a family member to direct withdrawal of artificial nutrition and hydration).

 

This Court -- albeit the comment was dictum because the patient in the case before it did not lack capacity -- earlier affirmed the general principle of the right of transferred consent outside of any statutory authorization:

"A patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data, as for example, where there is an emergency or the patient is a child or incompetent. For this reason the law provides that in an emergency consent is implied ... and if the patient is a minor or incompetent, the authority to consent is transferred to the patient's legal guardian or closest relative." Cobbs v. Grant, 8 Cal.3d 299, 104 Cal.Rptr. 404 (1972).

 

The 1999 enactment of the HCDL reaffirms this recognized right of an incompetent to have a close relative or other appropriate surrogate, outside any particular statutory status such as conservator, to make health care decisions for him. The Legislative Findings include that "[i]n the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment." Probate Code sec. 4650(c).

 

Thus, Probate Code sections 4750(a), (b) and (c) provide that a health care decision made, respectively, by a person acting based on an advance health care directive, by an agent acting for a principal, or by any surrogate for a patient "is effective without judicial approval." Section 4751 confirms that "[t]he remedies provided in this part are cumulative and not exclusive of any other remedies provided by law." Finally, sec. 4740 grants health care providers civil and criminal immunity for "complying with a health care decision of a person apparently having authority to make a health care decision for a patient, including a decision to withhold or withdraw health care." (Emphasis added.)

 

In short, a conservator's decision to withdraw artificial nutrition and hydration, like such decision by any non-statutory or other surrogate for the patient, is a private act, not a state act, and thus is not subject to any limitations imposed by the federal or state constitutional provisions that protect persons' rights to life, liberty, or property.

 

It is, of course, recognized in many of the above-cited cases, and in the statutes including the new HCDL, that judicial intervention may indeed be necessary as a last resort when an irreconcilable dispute arises, such as the instant bitter difference of opinion between Robert Wendland's wife and mother (and half-sister) as to whether his artificial nutrition and hydration should be withdrawn. The need for judicial intervention does not arise, however, merely because Rose is Robert's conservator. Rather, respondents presumably could attempt to invoke judicial intervention regardless of Rose's legal status, so long as respondents objected to her decision. But that an objector resorts to the courts to resolve a dispute does not convert the decisionmaker, whether she is a conservator or a non-statutory surrogate, into a state actor who is subject to constitutional limitations.

 

The overwhelming weight of authority across the nation is in accord that conservators are not state actors and that their decisions are thus not subject to constitutional review. For example, in Taylor v. First Wyoming Bank, 707 F.2d 388 (9th Cir. 1983), the Ninth Circuit ruled that a state appointed guardian was not a state actor. In that case, a Wyoming court had declared May C. judicially incompetent. The Wyoming court appointed the First Wyoming Bank and certain of the bank's employees as guardians of May's person and estate. Id., 707 F.2d at 389. May then moved to California to live with her daughter. The guardians obtained an order from the Sonoma County Superior Court directing that May be placed in a convalescent hospital in Sonoma County pending a hearing to show cause why custody should not be awarded to the guardian. Id.

 

At that point, May and her daughter filed an action under 42 U.S.C. sec. 1983, alleging that the conduct of the guardians, the state court judge, and others constituted action taken under color of state law, and violated May's constitutional rights. Id. The appeal involved whether action taken by a court- appointed guardian under the circumstances constituted action taken under color of state law. Id. The Ninth Circuit held that it cannot, a ruling that should be followed under the closely analogous facts of this case.

 

As in Taylor, the only state involvement here is that Rose Wendland was appointed as conservator in a court proceeding, initiated by Rose only after respondents obtained a temporary restraining order. Although respondents' commencement of court action forced Rose to seek the state court's approval to consent to withholding of life-support treatment, the state is not responsible for the care of Robert. As a now long-time resident (coming up on seven years) of the private Lodi Memorial Hospital, he is in no sense a ward of the state.

 

The medical treatment decisions at issue here are decisions of a private individual, not the state. Rose is not a state employee, but rather is a private individual. Rose, in performing her function as conservator, was acting on her own counsel based on medical advice, and was not participating in joint action with the state or serving a public function. Taylor, 707 F.2d at 390. This Ninth Circuit case is but one of many federal court cases holding that court-appointed guardians or conservators are not state actors. [FN3]

 

FN3. These include the following, which is a representative but not exhaustive list: Meeker v. Kercher, 782 F.2d 153 (10 superth Cir. 1986); Schaffrath v. Thomas, 993 F. Supp. 842 (D. Utah 1998); Colombrito v. Kelly, 762 F.2d 122, 132 (2d Cir. 1985); Malachowski v. Keene, 787 F.2d 704, 710 (1 superst Cir. 1986); Snyder v. Talbot, 836 F.Supp. 19, 24 (D. Me. 1993); Hicks v. Lewis, 1996 WL 172994, at p. 3 (M.D. Fla. 1996); Offut v. Kaplan, 884 F. Supp. 1179, 1193-94 (N.D. Ill. 1995); Levine v. County of Westchester, 828 F. Supp. 238, 244-45 (S.D.N.Y. 1993); Doe v. Bobbitt, 665 F. Supp. 691, 695 (N.D. Ill. 1987) (same); Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1116 (S.D. Miss. 1991), rev'd in part on other grounds, 995 F.2d 595 (5 superth Cir. 1993) (even county officials designated as guardians ad litem were not state actors while acting in representational capacity); cf. Polk County v. Dodson, 454 U.S. 312, 320, 102 S.Ct. 445, 450 (1981) (a public defender, though an employee of the state, is not a state actor when performing duty of independent representation to indigent client).

 

Nor does the fact that sec. 2355 provides a statutory mechanism that permits court-appointed conservators to make medical treatment decisions on behalf of conservatees incapable of giving informed consent translate private actions into state action. For example, in Kruger v. Wells Fargo Bank, 11 Cal.3d 352, 366, 113 Cal.Rptr. 449 (1974), this Court held that the private decision of a private business under no compulsion of state or federal regulation was not state action, even where the private actor was a highly regulated bank.

 

The California attorney general followed Kruger in issuing a thorough and well-reasoned opinion that the private decision of a parent to place his or her child in a private mental facility, without the involvement of a state agency in the placement decision, is not state action. 64 Cal. Op. Atty. Gen. Cal. 712, No. 80-812 (1981). Rose's private decision, indisputably made without the encouragement, participation or involvement of any state actor, similarly cannot constitute state action.

 

Finally, Rose's private decision on Robert's behalf was not an exercise of powers that are "traditionally the exclusive prerogative of the State." Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777 (1982) (citation omitted). As the 9th Circuit instructed in Taylor, supra, "[c]are of the elderly and the infirm has traditionally been a function associated with the family, not with sovereignty." 707 F.2d at 390, citing Musso v. Suriano, 586 F.2d 59, 63 (7th Cir. 1978). "The same result was reached in the case of a private orphanage in Henig v. Odorioso, 385 F.2d 491, 495 (3d Cir. 1967)." Taylor, 707 F.2d at 390. Our discussion above in this section of the Barber and Drabick cases also makes clear that, in California, these medical decisions are not a function traditionally associated with the sovereignty of the state.

 

Accordingly, respondents are flat wrong that "a court-appointed conservator's decision concerning termination of a conservatee's life-sustaining food and fluids implicates the conservatee's constitutional rights." (ROB 14) To the contrary, receiving a court appointment does not render Rose Wendland or any other conservator a state actor. Therefore the conservator's decision does not implicate the conservatee's constitutional rights.

 

Respondents' onlyapparent cited authority for their contention just quoted is an utterly distorted description of a statement by the U.S. Supreme Court in Thompson v. Oklahoma, 487 U.S. 815 (1988). Respondents have that Court saying that "the State has a constitutionally-cognizable responsibility to act in accordance with an incompetent individual's best interests." (ROB 14.) But what the Court actually said, without mentioning any "constitutionally- cognizable responsibilities" at all, was not that the State has any responsibility to act in the incompetent's best interest, but that incompetents' rights "are only meaningful as they are exercised by agents acting with the best interest of their principals in mind. Id. at 825 n.13 (emphasis added). The action is thus by the individual agent, not the State, and that agent is not a State actor.

 

G. Because A Conservator Is Not A State Actor, The Third District Erred In Holding That The Constitution Requires That The Elements Of Sec. 2355 Be Proved By "Clear And Convincing Evidence," Contrary To The Specific Statement In The Official Comment To The 1999 Amended Sec. 2355 That The Standard Of Proof Is Only Preponderance Of The Evidence.

 

The CLRC's Official Comment to the 1999 amended sec. 2355 provides in part: "This section does not specify any specific evidentiary standard for the determination of the conservatee's wishes or best interest. Consequently, the general rule applies: the standard is by preponderance of the evidence. Proof is not required by clear and convincing evidence." [FN4] Former Sec. 2355 had no such comment, although we argued below that the Legislature's intention to apply the default "preponderance of the evidence" standard was indicated, inter alia, by its repeatedly declining to amend sec. 2355 to add a "clear and convincing" evidence standard on several occasions when it added such a standard to nearby Probate Code sections pertaining to conservator action. We also argued that a "clear and convincing" evidence standard unduly limited the conservatee's liberty and privacy interest in having his conservator make health care decisions for him.

 

FN4. California Law Revision Commission reports and materials are authoritative sources for guidance in statutory interpretation. See Brian W. v. Superior Court, 20 Cal.3d 618, 622, 143 Cal.Rptr. 717 (1978); Osgood v. Shasta, 50 Cal.App.3d 586, 589, 123 Cal.Rptr. 442 (1975). Moreover, these materials are entitled to particularly substantial weight where the statute proposed by the Commission is adopted without change, as was the revised Sec. 2355. Sierra Nevada Memorial-Miners Hospital v. Superior Court, 217 Cal.App.3d 464, 469, 266 Cal.Rptr. 50 (1990).

 

The Third District's opinion as to the former statute begins with the holding that no matter what the Legislature might intend or say, the constitution requires imposition of a "clear and convincing" evidence standard for proof of the sec. 2355 elements. But the court's extended analysis is not really a constitutional one, but rather an examination of what is the appropriate policy to impose. In the absence of a clear signal from the Legislature, it might arguably be appropriate for the courts to engage in such policymaking.

 

But the Official Comment to amended sec. 2355 makes clear that the will of the Legislature is that the "preponderance" standard should apply. The Third District, citing this fact in its brief comment near the end of its opinion on the 1999 amendment, recognized that this left only the constitutional argument as a possible basis for judicially trumping the Legislature's determination: "However, as we have discussed ante, constitutional considerations may compel a clear and convincing evidence standard despite the Legislature's view." 93 Cal.Rptr.2d at 579.

 

But as we have shown above, that is no trump card at all because the decisions of Rose Wendland as conservator are not subject to constitutional due process of law standards, which means that the judiciary has no basis to overrule the Legislature's decision on the applicable evidentiary standard. The Third District, like respondents, leaps right over the fact that conservators are not state actors. Even worse, the Third District contradicts its own earlier analysis in which it concluded that the constitutional right to life is not infringed by allowing a surrogate to exercise a persons' right to refuse medical treatment, because "a guardian's withdrawal of life-sustaining treatment does not constitute a deprivation of life; rather, it allows the disease to take its natural course." Id. at 570. [FN5] If there is no constitutional right being deprived, then there is no constitutional basis on which to overrule the Legislature and impose a "clear and convincing evidence" standard.

 

FN5. The Third District prefaced its peculiar non-analysis with an even stranger introductory clause to the sentence quoted above: "Thus, even assuming there is 'state action,' ... 93 Cal.Rptr.2d at 570. Plainly there is not state action, and indeed the Court's opinion never bothers to discuss or analyze the state action issue, either at that point in the opinion or later when it rules that the constitution trumps the Legislature's decision on the evidentiary standard.

 

In short, the Third District was correct -- for the wrong reason -- that no constitutional right of the conservatee is infringed by his conservator deciding this matter for him. The right reason is that there is no state action. But either way, there is no predicate for imposing a clear and convincing evidence standard contrary to the legislative intent of amended sec. 2355.

 

H. This Court's Decisions In Thor V. Superior Court And Conservatorship Of Valerie N., Which Respondents Utterly Misconstrue, Demonstrate That Sec. 2355 Certainly Is Constitutional.

 

Leaving to one side the flaw that there is no state action upon which to base constitutional restrictions on private conservator action, respondents appear to argue that amended sec. 2355, as applied to this case, is unconstitutional because it mandates no presumption or preference that Rose as conservator choose for Robert as conservatee continued life rather than withdrawal of artificial nutrition and hydration which will end his life. Respondents suggest that this Court's decisions in Thor v. Superior Court, 5 Cal.4th 725, 21 Cal.Rptr.2d 357 (1993) and Conservatorship of Valerie N., 40 Cal.3d 143, 219 Cal.Rptr. 614 (1985), and the U.S. Supreme Court decision in Cruzan v. Missouri, 497 U.S. 261, 110 S.Ct. 2841 (1990), support this proposition. Respondents are wrong.

 

Actually, all three decisions support the constitutionality of a neutral statute such as sec. 2355, which is weighted in neither direction in regard to the substantive decision of life or death, but rather leaves to the conservator, after considering in good faith the available information about her conservatee's wishes and best interest, the resolution of that question. Respondents' suggestion (ROB 16) that this Court held otherwise in Thor when it referred to the state's "paramount concern" being the preservation of life, 5 Cal.4th at 738, is a grievous misrepresentation of the immediate context of the Court's discussion.

 

This Court had, prior to that reference, established that people have a fundamental right to be free from nonconsensual invasions of bodily integrity, which includes the right to decline unwanted medical treatment. Id. at 738. The Court then noted that the doctor who was arguing that prisoner Andrews must have medical treatment imposed on him suggested four countervailing state interests that should prevail over the right of personal autonomy -- which were preserving life, preventing suicide, maintaining the integrity of the medical profession and protecting innocent third parties.

 

The Court's response was that among these four -- not by way of contrast to the fundamental right of autonomy -- the state's paramount concern" was the preservation of life. But respondents crudely omit the Court's telling words immediately following that statement:

"In this context, however, these considerations can only assert themselves at the expense of self-determination and bodily integrity, matters all the more intensely personal when disease or physical disability renders normal health and vitality impossible. Accordingly, 'the duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity. [citation omitted] It is antithetical to our scheme of ordered liberty and to our respect for the autonomy of the individual for the State to make decisions regarding the individual's quality of life. It is for the patient to decide such issues.' [citations omitted]. In this situation, ' the value of life is desecrated not by a decision to refuse medical treatment but 'by the failure to allow a competent human being the right of choice.' [citations omitted]." 5 Cal. 4th at 739.

 

Of course, Thor is not directly on point here because it upheld a competent prison inmate's right to refuse to be kept alive by a stomach feeding tube, whereas the issue here is whether Robert's conservator may similarly refuse a stomach feeding tube on his behalf. But the opinion is relevant because of the manner in which this Court went on to indicate that incompetent persons have just as much of a constitutional right to have another make the decision on their behalf as a competent person has to make the decision directly:

"The fact that an individual's decision to forego medical intervention may cause or hasten death does not qualify the right to make that decision in the first instance. [Citations omitted.] Particularly in this day of sophisticated technology, the potential medical benefit of a proposed treatment is only one of the factors a patient must evaluate in assessing his or her perception of a meaningful existence. Since death is the natural conclusion of all life, the precise moment can be less critical than the quality of time preceding it. Especially when the prognosis for full recovery from serious illness or incapacitation is dim, the relative balance of benefit and burden must lie within the patient's exclusive estimation: 'That personal weighing of values is the essence of self-determination.' [citing] Conservatorship of Drabick, 200 Cal.App.3d at 208; Barber v. Superior Court, 147 Cal.App.3d at 1019." 5 Cal.4 superth at 739 (emphasis added).

 

That this Court's citation of Drabick -- which of course concerned an incompetent person rather than the competent prisoner then before the Court in Thor -- was no random dictum, is evident because the Court then linked the two fact situations:

"In California, the Natural Death Act, and other statutory provisions permitting an individual or designated surrogate to exercise conclusive control over the administration of life-sustaining treatment evidence legislative recognition that fostering self-determination in such matters enhances rather than deprecates the value of life." 5 Cal.4th at 740 (emphasis added).

Presumably, this Court was referring, inter alia, to statutes such as Probate Code sec. 2355, which then, as now, stated that conservators have the "exclusive authority to make health care decisions for the conservatee."

 

The U.S. Supreme Court, by 5-4 vote in Cruzan v. Missouri, did reject the argument that a person's right to liberty guaranteed by the U.S. Constitution makes such laws as amended sec. 2355 constitutionally mandated in order to protect and preserve the liberty (or in California, the liberty and privacy) right to have a surrogate decide whether to continue artificial nutrition and hydration. Therefore, we do not argue that the trial court's refusal to allow Robert's wife, as his surrogate, to exercise his right to end his existence by stomach feeding tube violated his federal constitutional right, although close analysis of Justice O'Connor's crucial fifth vote suggests that such argument may actually have merit. [FN6]. Moreover, as discussed further below, the trial court's refusal may well violate Robert's California state constitutional right to privacy, which is broader than the federal 14th amendment liberty interest.

 

FN6. Justice O'Connor's concurrence with Chief Justice Rehnquist's four- Justice plurality opinion said the 5-4 decision in Cruzan "does not preclude a future determination that the Constitution requires the States to implement the decisions of a patient's duly appointed surrogate." 497 U.S. at 292 (emphasis added). When combined with the views of the four dissenters who plainly stated there is such a constitutional right, the actual position of the U.S. Supreme Court, as best it can be ascertained, is that there probably already have been five votes endorsing the right. Justice O'Connor's comment indisputably established that any state's supreme court, including California's, was thenceforth free to determine that such fundamental constitutional right exists. This is precisely what the California Supreme Court did three years later in the Thor case, as demonstrated by the fact that this Court's footnote 5 takes care to cite not only the four Cruzan dissenters (per Brennan and Stevens), but also Justice O'Connor's decisive fifth vote for the proposition that "the patient's right of control over bodily integrity [is] the subsuming essential in determining the relative balance of interests" in regard to refusing life-sustaining treatment. 5 Cal.4th at 734-35 & n.5.

 

Nevertheless, the Cruzan majority, and this unanimous Court in Thor, plainly held that the California Legislature may choose, by statute, to grant to persons -- or more precisely recognize that persons possess -- what the four Cruzan dissenters (and perhaps Justice O'Connor at some later date) think was constitutionally required. Indeed, Chief Justice Rehnquist for the Cruzan majority acknowledged and implicitly endorsed California's statutory provision of what his majority determined Missouri was not required to give surrogate decisionmakers. 497 U.S. at 275-76 & n.5 (half-page description of Drabick, Barber and other California decisions).

 

This Court in Thor thus affirmed that "the right to refuse medical treatment is equally 'basic and fundamental' and integral to the concept of informed consent." 5 Cal.4th at 735-36, citing Cruzan, 497 U.S. at 267; Bouvia v. Superior Court, 179 Cal.App.3d 1127, 1137, 225 Cal.Rptr. 297 (1986); Bartling v. Superior Court, 163 Cal.App.3d 186, 195 (1984). Indeed, the right to refuse medical treatment is a liberty interest protected under the federal constitution. 5 Cal.4th at 735 n.5.

 

Moreover, Thor even went beyond these basic principles by endorsing the views of the four U.S. Supreme Court dissenters in Cruzan: "Justice Brennan explained in his dissenting opinion in Cruzan, supra, that 'The possibility of a medical miracle [may] indeed [be] part of the calculus, but it is a part of the patient's calculus."' 5 Cal.4th at 739, quoting 497 U.S. at 321 (emphasis in Brennan's original). Thor then cited Brennan's dissent as one of a number of authorities that show the state's interest in life does not outweigh the right to choose. 5 Cal.4th at 740, citing 497 U.S. at 313.

 

This Court made itself perfectly plain: "Moreover, the state has not embraced an unqualified or undifferentiated policy of preserving life at the expense of personal autonomy." 5 Cal.4th at 740, citing 497 U.S. at 314. This Court also affirmed the primacy of personal autonomy and the right of self- determination by citing not only Justice Brennan's dissent in Cruzan, but Justice Stevens' as well. 5 Cal.4th at 735 & n.5, citing Brennan, 497 U.S. at 304-06, and quoting Stevens, 497 U.S. at 343 ("The constitutional protection for the human body is surely inseparable from concern for the mind and spirit that dwell therein").

 

That this unanimous Court would repeatedly cite Justice Brennan's dissenting opinion (as well as Justice Stevens'), in conjunction with its endorsement of Drabick, can only mean that while incompetent persons such as Robert Wendland may not have a federal constitutional right to have surrogates exercise exclusive, plenary authority in their stead to cease maintenance of life by stomach feeding tube, the California Legislature without doubt is free to choose to enact a statute such as amended sec. 2355 that protects and preserves their right to have such surrogate decisionmaking.

 

Thus, sec. 2355 cannot possibly be unconstitutional. Moreover, it is entirely conceivable that because the privacy right in art. I, sec. 1 of California's constitution, construed in light of this Court's affirmations in Thor, is broader than the federal liberty interest under the 14th amendment construed in Cruzan, therefore sec. 2355 -- or an equivalent mechanism that facilitates conservator decisionmaking on behalf of their conservatees in regard to artificial nutrition and hydration -- may even be constitutionally required.

 

With regard to Conservatorship of Valerie N., it is difficult to determine whether respondents have deliberately misrepresented this Court's opinion, as they apparently did in regard to Thor, or whether they are just hopelessly mixed up in their legal analysis. Valerie N. is strong support, based on this Court's words, for appellants' position in this case, not respondents, because it applies to an incompetent person the same principle of the fundamental constitutional right of autonomy and personal choice about one's body and health that this Court applied eight years later in Thor to a competent person.

 

The statute struck down in Valerie N., former Probate code Sec. 2356(d), imposed just the sort of restriction on an incompetent's right to have a surrogate make a crucial health care decision that respondents not only want imposed on conservatees such as Robert Wendland, but even preposterously suggest must, under the constitution, be imposed on them. The statute absolutely prohibited a surrogate from authorizing the sterilization of any ward or conservatee. [FN7] "The question," said this Court, "is whether [Valerie N.] has a constitutional right to have these decisions made for her." 40 Cal.3d at 160. The Court's answer was that because "the Legislature has denied incompetent women the procreative choice that is recognized as a fundamental, constitutionally protected right of all other adult women," the statute's absolute prohibition "impermissibly deprives developmentally disabled persons of privacy and liberty interests protected by the Fourteenth Amendment to the United States Constitution and article I, section 1 of the California constitution." Id. at 160-61.

 

FN7. Thus "state action" obviously existed because the statute was action by the state that barred a conservator from exercising on behalf of the conservatee the right to be sterilized. In the instant case, as shown earlier in this brief, the conservator's own decision whether to withdraw artificial nutrition and hydration is not action by the state, but private action not constrained by the constitution.

 

This Court said the essence of the matter -- and this is crucial teaching for the instant case -- is that "[t]he interests of the incompetent which mandate recognition of procreative choice as an aspect of the fundamental right to privacy do not differ from the interests of women able to give voluntary consent to this procedure." Id. at 162 (emphasis added). The appellate court in Drabick recognized that this principle applies not just to sterilization, but also to the decision to accept or forego artificial nutrition and hydration: "In essence, Valerie N. stands for the proposition that incompetence does not cause the loss of a fundamental right from which the incompetent person can still benefit,", Drabick, supra, 200 Cal.App.3d at 208. Accordingly, Drabick held that prolonging the conservatee's life contrary to the good faith request of his conservator "would deprive William Drabick of a fundamental right." Id. at 208.

 

Thus, the replacement for sec. 2355 that respondents say they would find acceptable, indeed which they claim is constitutionally mandated, would in fact be an unconstitutional state action that would deprive Robert Wendland of his fundamental constitutional right to have a good faith conservator decide to withdraw his artificial nutrition and hydration. We know this because respondents let slip that "under a decisionmaking standard which withstands constitutional scrutiny, [Rose Wendland] can never meet her burden" required to justify, under respondents' theory, making this decision for Robert. ROB 12 n.8 (emphasis in original). Respondents elsewhere in their brief confirm that the statute they believe is mandatory is one that turns over to the courts, rather than conservators, the substantive task of determining a conservatee's best interests in regard to continued artificial life support, and then commands those courts to conduct every inquiry with a presumption in favor of continuation of all such treatments. Again, not only does neither the federal or state constitution mandate such a legal monstrosity, but such regime would, itself, be unconstitutional!

 

Moreover, and ironically in light of respondents' incoherent equal protection argument, their favored law would, indeed, deny Robert Wendland and similarly situated conservatees equal protection of the law. Like the statute struck down in Valerie N., it would effectively deny them, as a class, the right enjoyed by competent persons to decide to end existence by stomach feeding tubes and similar machinery.

 

Respondents also misconstrue the import of Valerie N.'s discussion, after this Court struck down the absolute prohibition of sterilization, of what standards and procedures should guide a conservator in making that decision for a conservatee, now that the Court had declared such sterilizations legal. This Court did not hold that any of the procedures it mandated were constitutionally required. Rather, the Court made clear that having ruled that sterilizations for incompetents could occur, it was looking to the State of Washington for guidance in adopting suitable regulations on an interim basis "pending action by the Legislature to establish criteria and procedural protections." 40 Cal.3d at 168. Among these was a "clear and convincing" evidence standard for conservator decisions to authorize sterilization.

 

Respondents are correct that the Legislature responded by enacting Probate Code secs. 1950 et seq. that imposed much tougher restrictions, including a "beyond reasonable doubt" standard and other specific evidentiary hurdles. Of course, this is the same Legislature that had previously banned the procedure altogether, so it is not surprising that it wanted tougher regulations than this Court established in Valerie N.

 

But none of this has the slightest thing to do with any constitutional considerations. This Court never said, and there is no basis to say, that its regulations, the Legislature's, or any other particular level of restriction are constitutionally mandated. Rather, it is the province of the Legislature -- within the constitutional bounds of the conservatee's constitutional right recognized in Valerie N. to have a surrogate make this medical decision -- to determine what procedures are appropriate.

 

Similarly, it is within the Legislature's province to establish procedures such as amended sec. 2355 for regulation of conservator decisions on life support. In both cases, a potential constitutional claim would arise only if it could be shown, or reasonably argued, that the Legislature's regulatory choice was so restrictive of the conservatee's fundamental right of choice through a surrogate -- not that the regulations were too expansive of that right -- that the legislation constituted state action which violated that right of choice.

 

Respondents say it makes no sense that sterilization for incompetents is subject to a "beyond a reasonable doubt" test, as well as the other specific requirements the Legislature has enacted, while a sec. 2355 conservator need meet only a lower standard of proof and is not subject to such additional requirements. But that distinction, which again is one of policy and not constitutional law, is one the Legislature reasonably could make -- and indeed has made in the 1999 legislation -- based on the extensive history of abuse of sterilization that this Court (including the dissents) documented in Valerie N. See 40 Cal.3d at 155 & n.16; 165 (majority opinion); 170 (Justice Reynoso); 171 (Justice Lucas); 176-77 (Chief Justice Bird). By telling contrast, and notwithstanding respondents' mere speculation, they present no evidence -- and there is none -- of any similar history of abuse by conservators making decisions to withdraw artificial nutrition and hydration from their incompetent conservatees.

 

I. The Phrase "Medical Advice" In Section 2355 Is Not Void For Vagueness.

 

Respondents contend that the term "medical advice" contained in amended sec. 2355 is "unconstitutionally vague" because it requires interested parties and the judiciary to guess as to its meaning and application. ROB 31-35. Respondents ask: "Consistent with the Third DCA's ruling, is Robert's conservator required to rely upon advice from the medical community as to generally accepted treatment options? Or will the receipt of any "medical advice," however rogue, experimental or untested, be sufficient evidence that Rose has fulfilled her duty to terminate his life-sustaining medical treatment in good faith." ROB 34 (emphasis in original). To persons of common intelligence, the answers to these two questions are obviously "yes" and "no," respectively.

 

Statutory interpretation is a question of law. Burden v. Snowden (1992) 2 Cal.4th 556, 562. When statutory language is clear and unambiguous, there is no need for construction, and the court should not indulge in it. Rojo v. Kliger, 52 Cal.3d 65, 73 (1990).

 

The due process doctrine of vagueness incorporates notions of fair notice or warning. A statute is unconstitutionally vague only if it either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. See Smith v. Goguen, 415 U.S. 566, 572-573 (1974). However, "[a]ll presumptions and intendments favor the validity of a statute. [Citation.] Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." Eden v. Van Tine, 83 Cal.App.3d 879, 886, 148 Cal.Rptr. 215 (1978).

 

"The requirement for certainty is not intended to demand that statutes be subject to absolute 'yes-no' or 'on-off' precision." Gutknecht v. City of Sausalito, 43 Cal.App.3d 267, 274, 117 Cal.Rptr. 782 (1974). Reasonable certainty is all that is required:

It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of acts or conduct prohibited. The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Id.

 

Moreover, the lack of a formal definition for a commonly understood term does not render a statute void for vagueness. San Miguel Consolidated Fire Protection District v. Davis, 25 Cal.App.4th 134, 147, 30 Cal.Rptr.2d 353 (1994); citing People v. Rodriguez, 50 Cal.App.3d 389, 398-99, 123 Cal.Rptr. 185 (1975) (requisite certainty may be supplied by reference to plain common sense meaning of terms). Finally, the phrase must be read in the context of the statute as a whole, and should be interpreted objectively using a "people of ordinary intelligence" standard. See People v. Hsu (August 7, 2000, California Court of Appeal) 00 C.D.O.S. 6511, 6515, citing Beauharnais v. Illinois, 343 U.S. 250, 253 (1952).

 

Applying these standards, the phrase "medical advice" as used in sec. 2355, the term is not unconstitutionally vague. "Medical advice" is in and of itself a term in common usage for which no formal definition is required, as in the vernacular expression "checking out of a hospital against medical advice.". People of ordinary intelligence would readily understand that the "medical advice" required under the statute is not "rogue, experimental or untested" science.

 

Moreover, sec. 2355 is part of a larger statutory scheme, which makes plain that the Legislature intended by the term "medical advice" in sec. 2355 that the conservator obtain medical advice from qualified physicians. The conservator, who is appointed is a fiduciary for the conservatee, must demonstrate by clear and convincing evidence the necessity of a conservatorship in the first instance. Probate Code sec. 1801(e). The court also must determine, after a hearing, that the conservatee is incapable of giving informed consent before a conservator can exercise sec. 2355 powers. See Probate Code secs. 1880 et seq. Such inquiry presupposes receipt of qualified medical advice. Indeed, in the context of withholding life-sustaining treatment, the conservatee's incompetence -- though not the conservator's actual decision after determination of incompetence -- must be shown even by clear and convincing evidence. Cf. Lilian F. v. Superior Court, 160 Cal.Ap.3d 314, 324, 206 Cal.Rptr. 603 (1984). It is very difficult to imagine how a showing to that evidentiary standard could be made without qualified medical evidence.

 

Accordingly, in the context of the statutory scheme of which sec. 2355 is a significant part, it is clear that the Legislature intended that the conservator obtain medical advice from competent, qualified physicians. Thus, the phrase is not unconstitutionally vague on its face.

 

Nor is it unconstitutionally vague as applied to the facts of this case. It indisputable, as shown earlier in this brief, that Rose Wendland did obtain precisely advice from numerous competent, qualified physicians. That respondents disagree with that advice is quite beside the point and does not render either the advice vague or the statute as applied vague.

 

IV.

 

CONCLUSION

 

For the foregoing reasons, the judgment of the trial court that Rose Wendland be prohibited from directing the withdrawal of Robert Wendland's artificial nutrition and hydration should be reversed.

 

Moreover, this Court should now order judgment, without remand for further evidentiary proceedings, that Rose Wendland does have the power and the right, if she now chooses on behalf of Robert Wendland, to direct the withdrawal of his artificial nutrition and hydration.