CONSERVATORSHIP OF THE PERSON OF ROBERT
WENDLAND, Appellant
ROSE WENDLAND, Appellant,
v.
FLORENCE WENDLAND and REBEKAH VINSON, Respondents.
Third Appellate District No. C029439
No. S087265.
California Supreme Court Reply Brief.
September 11, 2000.
JANIE HICKOK
SIESS #166869
1765 Cape Cod
Circle Lodi, California 95242
(209) 366-1446
Attorney for
Respondents FLORENCE WENDLAND and REBEKAH VINSON
*i
TABLE OF CONTENTS
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
*ii
TABLE OF AUTHORITIES
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.
LEGAL ARGUMENT
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.
CONCLUSION
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.
