© 1999-2000 law.com Inc. © 1999-2000 NLP IP Company, Thursday, February 17, 2000 Arguing Over Life and Death Court hears right-to-die case that pits victim's wife against relatives By Mike McKee

			S ACRAMENTO -- Twice during oral arguments Wednesday in an emotional right-to-die case, Third District Court of Appeal Justice Richard Sims raised a simple, yet difficult question. Why shouldn't someone have to prove by clear and convincing evidence that their decision to terminate life support for someone else who can no longer speak for himself was made in good faith and based on sound medical advice? "How can it be that due process requires proof beyond reasonable doubt for a misdemeanor criminal offense," asked Sims, "while it wouldn't be that high in a case where a man will die?" As he and fellow appellate Justices Arthur Scotland and Fred Morrison discovered in a grave, sometimes testy, session that lasted for more than an hour, there are no easy answers. The case before the court involves the fate of Robert Wendland, a 48-year-old Stockton man who has been in a state of semiconsciousness for much of the last 61/2 years. He has limited motor functions, but hasn't spoken a word since he was injured in September 1993 when he crashed his company truck near Stockton. His wife, Rose, eventually sought to disconnect her husband's life support, saying he had confided to her that he never wanted to be kept alive artificially. But Wendland's mother, Florence, and one of his sisters, Rebekah Vinson, went to court to block the attempt. In December 1997, San Joaquin County Superior Court Judge Bob McNatt ruled against letting Rose disconnect her husband's feeding tubes. McNatt said Rose had not proved Robert's wishes by clear and convincing evidence, even though he held that, as Robert's conservator, she had acted in good faith and upon valid medical advice. The case has garnered nationwide attention because California appeal courts have never decided whether life support can be ended for someone like Wendland, who is neither in a persistent vegetative state nor terminally ill. Much of Wednesday's appellate argument focused on how high the burden of proof should be and, indeed, whether or not a conservator needs to meet such a burden at all. James Braden, a San Francisco attorney who represents Robert Wendland's interests, and S.F. attorney Lawrence Nelson, speaking for Rose Wendland, argued that state probate law gives conservators -- once approved by a judge -- explicit authority to make life-and-death decisions. They based that claim largely on Conservatorship of Drabick, 200 Cal.App.3d 185, a 1988 ruling from the Sixth District Court of Appeal that upheld a conservator's authority. "Having picked the conservator, [the judge] has to let her make the decision," Braden told the Third District panel. To do otherwise, Nelson agreed later, would undermine conservators' powers. The justices, however, didn't seem comfortable with that line of thought and noted that Drabick dealt with someone -- unlike Wendland -- in a persistent vegetative state. The justices also referred to a footnote in that ruling that indicated it shouldn't be interpreted to include broader categories of people. They also questioned why it shouldn't be -- as the lower court held -- the conservator's burden of proving she had complied with the statutory scheme, rather than placing that burden on those who challenge her authority. But Nelson said state law gives Rose Wendland the authority to make a decision. And if anyone challenges her, they should have to prove that she fell short of meeting statutory requirements. Stockton lawyer Janie Hickok Siess, who represents Wendland's mother and sister, encountered her own line of tough questioning from the panel. Why, they asked, shouldn't her clients have to prove Rose failed to meet her burden of proof before terminating life support. She responded that Robert has a constitutional right to life, which his wife is trying to take away. "It's not in Robert Wendland's best interests to die," said Siess, an associate at Brown, Hall, Shore & McKinley. "There is no evidence that is what he wanted." "It could equally be cast another way," said Justice Scotland, "that your side is trying to deprive Mr. Wendland of his fundamental right to end his life." Scotland also questioned whether it makes any sense to have judges making life-or-death decisions for someone like Wendland rather than people who know him best. "Do we want a situation where judges are second-guessing a conservator?" he asked. Five amicus curiae briefs were filed with the Third District -- two supporting termination of Wendland's life support and three in opposition. "This case has society-wide significance, testing as it does the moral stature of our civilization," Oakland lawyer Wesley Smith wrote on behalf of the Coalition of Concerned Medical Professionals, which backs Wendland's mother and sister. The case has already come before the Third District. In 1996, an appellate panel approved a separate lawyer for Wendland, over his wife's objections. At that time, Justices Sims, Robert Puglia and Vance Raye hinted that they might not look favorably upon Rose's decision to terminate life support. Withdrawing water and nutrition from a permanently unconscious patient, Raye wrote, "does not have the same consequences it would have for a person [like Robert] with even limited cognitive functions."