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Third Appellate District No. C029439

No. S087265.


California Supreme Court Reply Brief.


September 11, 2000.







1765 Cape Cod Circle Lodi, California 95242

(209) 366-1446







Table of Authorities ... ii



I. Legal Argument ... 1



A. For purposes of considering whether Probate Code 2355 violates California constitutional principles, it is unnecessary to question whether Rose Wendland is a "state actor." ... 1



B With regard to analysis of the conservatee's rights guaranteed by the Fourteenth Amendment, the conservator should be deemed a "state actor." ... 3



C. The Third District Court of Appeal did not err in remanding this matter for further proceedings in the trial court ... 7



D. The application of Probate Code 2355 is limited and constrained by the conservatee's medical condition and the Legislature's expressed intent to codify the holding of Drabick ... 9



E. Probate Code 2355 impermissibly exalts the subjective intent and motives of the conservator over the objective and demonstrable actual best interests of the conservatee ... 10



F. Probate Code 2355 denies to conservators such as Robert Wendland the equal protection of the law and violates his liberty interest ... 11



V. Conclusion ... 13






Federal Cases ... Page



Taylor v. First Wyoming Bank (9th Cir. 1983) 707 F. 2d 388 ... 4,5



Thomas v. Morrow (4th Cir. 1986) 781 F.2d 367 ... 5, 6



Youngberg v. Romeo (1982) 457 U.S. 307 ... 5



State Cases ... Page



Bernhard v. Bank of America (1942) 19 Cal.2d 807 ... 8



Conservatorship of Drabick (1988) 200 Cal.App.3d, 200 ... 2, 6, 9, 13



Conservatorship of Wendland (2000) 78 Cal.App.4th 517 ... passim



Thor v. Superior Court (1993) 5 Cal.App.4th 725 ... 3,



Federal Statutes ... Page



U.S. Const. Amend. XIV, Section 1 ... 3, 12, 13



State Statutes ... Page



Constitution, Article 1, 1 ... 1, 13



Probate Code 1950 ... 11, 12, 14



Probate Code 2355 ... passim



Probate Code 4650 ... 9



Code of Civil Procedure 631.8 ... 7



*1 I.



A. For purposes of considering whether Probate Code 2355 violates California constitutional principles, it is unnecessary to question whether Rose Wendland is a "state actor."


Whether or not a duly appointed California conservator is, in fact, "a state actor" is a question which has not been addressed by this tribunal or any of the California Courts of Appeal.


At the outset, it should be noted that the question need not be answered with regard to the California Constitution. The Third District Court of Appeal ("Third DCA") considered this case within the context of the California Constitution, article I, section 1, which states that "[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Decision at 568.) The Third DCA felt that Appellants' advanced liberty argument did not enhance the discussion. (Id. at 569.)


In making a determination as to whether the language of Probate Code 2355 [FN1] is so broad as to deny the conservatee's rights under the California Constitution, there is simply no need to consider whether or not the conservatee is a "state actor." There is absolutely no requirement that, in order for the protections afforded all citizens of California to come into play in a particular proceeding, there must be at issue some threatened action by a ""state actor." The language of the California Constitution is not so limited.



FN1. All further statutory references are to the Probate Code, unless otherwise noted.



*2 Rather, as the decisions of the California courts to date have acknowledged, the conservatee's fundamental rights enumerated in article I, section 1, are implicated when his/her conservator seeks to or does take action that impacts the conservator's fundamental rights.


This tribunal has never considered the extent to which a conservator may ""vicariously'' exercise the 2355 right to refuse medical treatment on behalf of his/her conservatee. But it is clear that the right can only be exercised ""vicariously'' when the conservatee, as in this case, has neither left an advance written directive nor made explicit pre-incompetence statements regarding his desired level of medical treatment in the event of incompetence. (See Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 209 [["Drabick''].)


Appellants argue that, consistent with 2355, a conservator enjoys an unfettered ability to make an "exclusive" decision about the care and treatment of the conservatee. Such is not the case. Appellants plainly overlook the purpose of the Probate Code's directive that an "interested person" may challenge the conservator's decisions, as well as the fact that the probate court is clothed with authority to limit, as it sees fits, the scope of the conservator's decision-making authority. That is precisely what the Probate Court did in this proceeding. While granting conservatorship to Rose Wendland ("Rose''), it stopped short of granting her the power to direct that Conservatee Robert Wendland's ("Robert'') life sustaining food and fluids be withheld.


As set forth in Respondents' Opening Brief, the standard set forth in 2355, as amended July 1, 2000, is insufficient to assure that the conservatee's rights under the California constitution are protected. Specifically, the statute impermissibly shifts the *3 focus from the conservatee to the conservator's subjective thought processes, requiring the probate court to venture into a legal quagmire of unknowns regarding the conservator's "good faith," rather than employing an objective standard which would allow the court to determine whether or not the conservator's decision regarding the conservatee's medical treatment is consistent with the conservatee's actual and demonstrable best interests.


B. With regard to analysis of the conservatee's rights guaranteed by the Fourteenth Amendment, the conservator should be deemed a "state actor."


Appellants contend that Rose is not a "state actor" and, therefore, Robert's Fourteenth Amendment right not to be deprive by any state of "life, liberty, or property, without due process of law" is not implicated in this proceeding. The argument is only germane with regard to Robert's federal constitutional rights, having no application to California constitutional principles and protections, as demonstrated supra.


In Thor v. Superior Court (1993) 5 Cal.4 superth 725, 737 ("Thor''), this Court weighed an individual's right to autonomy and self-direction of his/her own medical treatment against the State's "countervailing considerations in determining the scope of patient autonomy: preserving life, preventing suicide, maintaining the integrity of the medical profession, and protecting innocent third parties." It concluded that "a competent, informed adult, in the exercise of self-determination and control of bodily integrity, has the right to direct the withholding or withdrawal of life-sustaining medical treatment, even at the risk of death, which ordinarily outweighs any countervailing state interest." (Id. at 744 [emphasis added].)


Appellants maintain that Rose's proposed course of action, i.e. to direct that Robert's food and fluids be withheld, is a private act, which does not require the *4 establishment of a conservatorship and, therefore, she is a private, not a state actor. Therefore, the substantive and procedural safeguards guaranteed by the Fourteenth Amendment are inapplicable herein.


Respondents opposed Rose's proposed course of action and exercised their right to petition the probate court, asking it to intervene in the family dispute concerning Robert's future. Their request for injunctive relief was granted and followed by Rose's request to be appointed Robert's conservator. Thus, while Rose might have been able, arguendo, without judicial oversight, to carry out her plan to bring about Robert's death, absent disagreement from his family members, that right was forever lost when they became aware of her intent and successfully blocked her from carrying out her plan. Indeed, that is one of the very purposes of the conservatorship provisions contained within the Probate Court. By maintaining its role as overseer, the probate court fulfills the state's parens patriae role and obligation to protect its citizens from abuses and deprivations of their fundamental constitutional rights.


Appellants are wrong when they assert that "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." (Robert Wendland's Answer Brief on the Merits, page 35.)


Appellants cite no California decision in support of their assertion, relying instead upon the Ninth Circuit's decision in Taylor v. First Wyoming Bank (9th Cir. 1983) 707 F. 2d 388. The Taylor court stated that "the mere fact that a business is regulated by state *5 law or agency does not convert its dealings into acts 'under color of state law.' [Cite omitted.]'' Rather, otherwise private action may be transformed into state action if the private actor participates in joint action with the state or its agents, or exercises authority delegated to it by the state which is "traditionally exclusively reserved to the state." (Ibid.)


Appellants accurately point out that a number of federal courts that have considered the question have determined that conservators are not state actors. The vast majority of those decisions have arisen within the context of actions arising out of 1983. However, at least one federal court has held that a conservator is a state actor and that court's reasoning is applicable in this proceeding.


In Thomas v. Morrow (4 superth Cir. 1986) 781 F.2d 367 ("Thomas"), the friend of an individual subject to a guardianship sued the ward's guardian, alleging that the guardian had failed to provide minimally adequate accommodations for the ward, thereby, in concert with state authorities, depriving the ward of his Fourteenth Amendment liberty interest in receiving adequate services and training. (See Youngberg v. Romeo (1982) 457 U.S. 307.) Although the guardian denied that he was a state actor, he court found that the guardianship was "fairly attributable to the State." [FN2]



FN2. Stated differently, the Ninth Circuit has ruled that "[w]here the challenged action is that of a private individual, there must be ' 'significant state involvement' before the due process guarantees of the Constitution will attach." See Melara v. Kennedy (9 superth Cir. 1982) 541 F.2d 802.



The Thomas court determined that the guardian's authority over his/her ward is a "right or privilege created by the State" and that, by statute, the purpose of the guardianship is to replace the individual's authority to make decisions with the authority of the guardian to make decisions for the incompetent ward. That authority included, by statute, the right to make medical treatment decisions for the ward. (Thomas at 377.)


*6 Rose's appointment as conservator of Robert is indeed a "right or privilege" created by the applicable provisions of the Probate Code. Clearly, the purpose of the conservatorship is to replace Robert's ability to make his own decisions concerning his medical care and treatment, i.e. his autonomy, with Rose's authority to make those decisions for him. This is clearly the "legal fiction" referenced by the Drabick court, which acknowledged that a conservator may only "vicariously" exercise the rights of the conservatee. (Drabick, supra, 200 Cal.App.3d. 208, 209.)


Regardless of whether or not Rose might have been able, under common law principles, to make medical treatment decisions for Robert absent the establishment of a conservatorship, her decision to terminate his life, scrutinized in this proceeding, arises under, out of and as a result of the statutorily created conservatorship. She is subject to the control of the probate court, which retains its ability to monitor, assess, and, if it deems it appropriate, limit her statutorily conferred powers as a conservator.


The Thomas court also found that the guardian "acted together with or has obtained significant aid from state officials" and thus "may fairly be said to be a state actor." (Thomas at 377.) The same is true of Rose, who sought and received the assistance of the probate court in being appointed Robert's conservator and was granted by that tribunal the statutory authority to make Robert's medical decisions for him. Specifically, in her petition to be appointed conservator, Rose sought the court's express permission to direct the termination of Robert's life sustaining medical treatment. Therefore, in the face of Respondents' opposition to Rose's decision to bring about *7 Robert's death through cessation of his life sustaining food and fluids, Rose can only implement her decision with the assistance and approval of courts of this State.


Moreover, Appellants contend that "the state is not responsible for the care of Robert." (Robert Wendland's Answer Brief on the Merits, page 36.) That statement simply is not accurate, since Robert receives Medi-Cal benefits that allow him to continue residing at Lodi Memorial Hospital West. For many years, Robert has been entirely financially dependent upon the State of California for those benefits and his very survival.


For all these reasons, this Court is free to and should rule, as a matter of first impression, that a California conservator is indeed a state actor and, therefore, Robert is entitled to the protections afforded him by the Fourteenth Amendment.


Those protections are violated by 2355, as discussed in Respondents' Opening Brief on the Merits.


C. The Third District Court of Appeal did not err in remanding this matter for further proceedings in the trial court.


The Third DCA made clear that remand was appropriate because the hearing in the probate court ended when Respondents Code of Civil Procedure 631.8 motion was granted. Accordingly, Respondents did not and have not waived their right to present evidence. (Decision at 579.)


Appellants incorrectly argue that, because Respondents asked the trial court to remove Rose as her husband's conservator, a request refused by the probate court, they have "had their day in court" as to the ultimate issue in this proceeding, i.e. whether Robert's death should be brought about via a directive by his conservator, Rose, to histreating physicians to withhold his life- sustaining food and fluids. That issue was not *8 before the trial court in the separate proceeding related to whether or not Rose should continue serving as Robert's conservator.


More importantly, the cross-appeal lodged by Respondents in the Third DCA on that very issue was dismissed and is not among the issues that this Court has been asked to address.


Appellants argue that Rose's "good faith" was tested in the brief hearing on Respondent's petition to remove her as Robert's conservator and Respondent's should be denied their right to put on their evidence as to the ultimate issue. In support of that assertion, they rely upon Bernhard v. Bank of America (1942) 19 Cal.2d 807, 813. Their reliance is misplaced.


There is no "requisite identity of issues" between this proceeding and the 1998 hearing in the probate court on Respondents' petition to remove Rose as Robert's conservator. The specific "good faith" which this Court now addresses is that related to Rose's decision to bring about the end of her husband's life by ordering the removal of the tube through which he receives life-sustaining food and fluids. Whether or not that decision was made in "good faith" was not before the trial court during the hearing on Respondents' removal petition. Therefore, Appellants incorrectly argue that the issues were "substantially identical for all practical purposes." (Robert Wendland's Brief on the Merits, page 30.) And they admit that point when they concede that the "medical advice" element was not raised at all during the removal hearing. (Ibid.)


If this Court upholds the Third DCA's decision as to the constitutionality of 2355, it must also uphold the Third DCA's decision to remand the matter to the trial court for further proceedings consistent with that decision. Respondents never put on *9 their case-in-chief, did not call a single witness to the stand, and retain their right to rebut the evidence adduced at trial by Appellants. Respondents have not had a full and fair opportunity to litigate the question of whether or not Rose's decision to end Robert's life was made "in good faith based upon medical advice."


Obviously, if this honorable tribunal overrules the Third DCA's decision, the case must still be remanded for further proceedings consistent with whatever pronouncements it makes.


D. The application of Probate Code 2355 is limited and constrained by the conservatee's medical condition and the Legislature's expressed intent to codify the holding of Drabick.


Appellants cite the Official Comment to Probate Code 4650 for the proposition that 2355 is not limited by the decision it codified, Drabick. Appellants' argument is unavailing. The Comment to 4650 states only that its application is not limited to "persons with a terminal condition or permanent unconscious condition." However, that language cannot and does not contradict or modify the clear and unequivocal intent of the Legislature. (See Law Revision Commission Comment. ["As amended, subdivision (a) is consistent with...'' Drabick.].) And Drabick is indeed limited by its factual underpinning: "This opinion's reasoning is predicated upon its subject being a patient for whom there is no reasonable hope of a return to cognitive life. We have not considered any other case, and this opinion would not support a decision to forego treatment if this factual predicate could not be satisfied." (Drabick, supra, 200 Cal.App.3d 185, fn. 36.)


Thus, Appellants' argument that 2355 undeniably applies to conservatees such as Robert who are neither permanently comatose, terminally ill, or in a persistent vegetative state, is simply wrong.


*10 E. Probate Code 2355 impermissibly exalts the subjective intent and motives of the conservator over the objective and demonstrable actual best interests of the conservatee.


Curiously, Appellants have chosen to ignore and provide no response to the bulk of Respondents' arguments concerning the application of 2355 and the manner in which it impermissibly infringes upon the conservatee's fundamental rights. Specifically, Appellants fail to rebut that, under the standard enunciated in 2355, as amended effective July 1, 2000, when the probate court is drawn into a dispute among interested parties, such as the instant proceeding, or asked by a conservator to review the correctness of his/her decision, the entire thrust of the probate court's inquiries are shifted away from the conservatee's rights and interests, which is where the focus is constitutionally required, to the subjective, essentially unknowable, and ultimately undiscoverable motives of the conservator. That is because the crux of the probate court's inquiry and analysis will be focused upon the medical treatment which the conservator subjectively deems in "good faith based on medical advice... to be necessary" for his/her conservatee. The amended version of 2355 did not change this result, given that "the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest." The focus remains not upon the conservatee's actual best interests, but the conservator's perception of the conservatee's best interests. The role of the probate courts will be, despite the amended language of the statute, to consider conservators' values-laden judgments about whether or not their conservatee's life is worth living, and force the courts, when faced with objections lodged by interested persons such as the Respondents herein, to examine the *11 conservator's motives, decision-making process, avenues of inquiry, etc., putting the conservator on trial.


F. Probate Code 2355 denies to conservators such as Robert Wendland the equal protection of the law and violates his liberty interest.


Appellants misconstrue Respondents' argument concerning 1950, et. seq. Respondents never asserted that the evidentiary standard adopted by the Legislature, proof beyond a reasonable doubt, was required. (See Rose Wendland's Response Brief, page 39.)


Rather, Respondents correctly assert that, since the Legislature did adopt the most stringent evidentiary standard when deciding whether or not a conservator may direct that his/her conservatee be sterilized, the result is that a California conservatee's life may be ended merely by a clear and convincing showing that his/her conservator has considered his/her own perceptions of the conservatee's best interests, i.e. in reliance upon the conservator's subjective mental state, rather than upon evidence that ending the conservatee's life is consistent with the conservatee's objective actual best interests.


But an incompetent conservatee's ability to procreate may not be terminated except upon a showing that such action is, beyond a reasonable doubt, necessary and appropriate under the circumstances. This constitutes an undeniable deprivation of equal protection to California conservatees.


Appellants plainly do not understand the argument advanced by Respondents, as evidenced by their statement that, if this Court were to correct the statutory deficiencies such that equal protection were afforded to all California conservatees, Robert would be deprived "of his fundamental constitutional right to have a good faith conservator decide to withdraw his artificial nutrition and hydration." (Robert Wendland's Answer Brief on *12 the Merits, page 46.) Nothing could be further from the truth. Appellants also erroneously contend that Respondents have advanced a "policy," rather than "constitutional law" argument. (Id. at 47.) Appellants are, simply, wrong.


Under existing California law, a conservatee facing sterilization is the recipient of greater procedural and substantive protections and safeguards than is a conservatee whose very life might be terminated as the result of a subjective determination by his/her conservator. Inarguably, to provide great legal protections against sterilization than against death itself is to turn the overarching purposes of constitutional safeguards upside down. Respondents contend that, at a minimum, the right to life [FN3] must certainly be equally as important as the right to make procreative decisions.



FN3. And, of course, the right to refuse medical treatment, since it has been deemed a fundamental right by this Court. See Thor v. Superior Court, supra, 5 Cal.4 superth 725.



Appellants assert that Respondents cannot, in support of their argument, point to evidence of a history of abuses and, therefore, Respondent's contentions must be disregarded. (Rose Wendland's Response Brief, page 47-48.) Appellants miss the point of Respondents' argument. It is not necessary for Respondents to affirmatively demonstrate that California conservators have abused their power in the manner Respondents caution against. It is not necessary for Respondents to compare and contrast the treatment of specific California conservatees whose rights were adjudicated under either 1950, et. seq. or 2355 as a means of demonstrating that the two statutes, in practice, will result in a denial of equal protection. Rather, it is sufficient for Respondents to demonstrate to this tribunal, as they have, that a clear and unequivocal potential for abuse exists and request that this Court intercede to prevent such abuse from coming to pass.


*13 II.



Appellants' arguments regarding the applicability of California constitutional principles to this proceeding are entirely unavailing. There is absolutely no requirement that, in order for Robert to enjoy the protections of article I, section 1, his conservator be deemed a "state actor." Such limiting language is simply not found in the California Constitution and his rights arising thereunder are clearly implicated and at risk in this proceeding.


As to Appellants' contention that Rose is not a "state actor" and, therefore, Robert's rights guaranteed by the Fourteenth Amendment are not jeopardized by her attempt to withdraw his life-sustaining food and fluids, the question is one of first impression in California. Respondents maintain that Rose is, for all the reasons enumerated herein, a "state actor" such that her decisions regarding Robert's medical treatment must meet and satisfy heightened scrutiny. The protections of the Fourteenth Amendment are available and applicable to Robert.


There is no basis upon which to believe that 2355 was ever designed or envisioned by the California Legislature to be applicable to a conservatee such as Robert. Rather, the amended statute was intended to "codify Drabick.'' And Drabick is plainly limited by its own factual underpinning, i.e. a conservatee who had lingered in a persistent vegetative state for a period of more than five years and has no application to a conscious, interactive conservatee such as Robert who inarguably enjoys cognitive function.


*14 Finally, the California Probate Code, as it currently exists, grants unequal protection of the laws to California conservatees, given that, consistent with that statutory scheme, a conservator may direct that his/her conservatee's very life be ended only upon a clear and convincing evidentiary showing that the conservator acted "in good faith based upon medical advice." At the same time, a California conservatee may not be sterilized, i.e. denied his/her right and physical ability to procreate, absent the strongest evidentiary showing (beyond a reasonable doubt) of a number of specifically enumerated factors. See 1950, et. seq. That showing includes, e.g., a requirement that counsel be appointed to oppose the sterilization of the conservatee, a requirement conspicuously lacking in 2355. A clearer deprivation of equal protection would be hard to envision.