Wendland Condition Deteriorates

The Daily Recorder -- July 17, 2001

FAMILY WAITS: Mother Florence Wendland and her daughter, Rebekah Vinson, want greater access to Robert Wendland.

Case Heats Up; Victimís Condition Deteriorates

By Mike McKee

RECORDER STAFF WRITER

Although he's been semi-conscious for seven years and kept alive solely through feeding tubes, Robert Wendland might still throw his court case into a tizzy -- by dying.

Wendland, hospitalized north of Stockton since shortly after a truck wreck in 1993, has been at the heart of a family struggle over whether his life should be ended. His case, argued before the state Supreme Court in May, could result in a precedent-setting ruling that for the first time in California allows life-support termination for someone who isn't either terminally ill or in a persistent vegetative state.

Over the past weekend, however, word was released that Wendland's condition has taken a severe turn for the worse and that he, in fact, could be dying. If that happens, Rose Wendland, the bedridden man's wife, could get what she wants -- her husband's release from a hellish life she says he wouldn't want -- by default.

But what would happen to the bigger legal issue regarding whether a conservator, like Rose, has the authority to pull the plug on a man who some insist retains some cognitive abilities? That all depends on the Supreme Court justices.

"There is no one fixed answer," Beth Jay, principal attorney to California Chief Justice Ronald George said Monday. "The court has the discretion to dismiss the case or keep cases. It depends really on the circumstances and how the court evaluates the issues."

Paul Fogel, an appellate specialist and partner at Oakland's Crosby, Heafey, Roach & May, noted that the court often will continue looking at a case's broader issues if they are of public importance or of significant statewide interest. He said the justices also could follow a similar standard that lets it review cases in which the ripeness of the issue has been extinguished by the passage of time.

"For example, a civil commitment of a few days," he said. "By the time it gets to the Supreme Court, the guy has been let out."

One appellate specialist who spoke on condition of anonymity said there's also the possibility the case will need to be reargued before the court because of the recent death of Justice Stanley Mosk.

The Wendland case has been held up by many groups as one of particular importance because of what the court might say about not only the life-and-death issues surrounding Wendland, but also about what powers a conservator has to make decisions in such cases.

Throughout, there have also been considerable differences of opinion about Wendland's condition. Rose, his wife, contends that he is barely conscious and shows no cognition, but Florence Wendland, his mother, argues that he actively relates to her during visits.

On Monday, Florence Wendland's lawyer, Janie Hickok Siess of Lodi, filed an emergency order with Sacramento's Third District Court of Appeal seeking both an immediate appraisal of Wendland's condition and unfettered visitation rights for Florence and her daughter, Rebekah Vinson.

Siess contended in her papers that Wendland was "gravely ill" and that medical personnel refused to tell Florence what was wrong. She also argued that Rose Wendland had inexplicably ordered that no one other than Florence could visit Wendland in the hospital and that Florence not be allowed to take her son outside his room.

"Florence and Rebekah reasonably fear that Robert is dying," Siess wrote, "and they, his close family members, are being barred by Rose, in reliance upon and abuse of the authority invested in her as Robert's conservator, from being informed about Robert's true medical condition or spending precious time with him."

San Francisco solo practitioner James Braden, who represents Robert Wendland's interests, couldn't be reached for comment Monday. But S.F. solo Lawrence Nelson, who represents Rose on appeal, called Siess' petition groundless.

"There's no legal merit to it," he said. "My guess is the court will peremptorily reject it."

If Wendland expires, Nelson said he's not sure what he would ask of the high court. "We are still thinking about our options," he said.

He also declined to speak in detail about Wendland's physical health.

"All I can tell you about Robert's condition is that he is ill," Nelson said. "Rose has directed that no one who is in contact with information is supposed to say anything more than that to the public.

"She considers it to be a private matter at this point," he added, "although she vigorously disputes any allegation that anything improper or untoward is happening."

Associate editor Mike McKee's e-mail address is mmckee@therecorder.com.